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THE  CODE 


OF 


CIVIL  PROCEDURE 


^.  .-' 


•^  ^v>^_ 


THE 

CODE 


CIVIL    PROCEDU 


.-    'f-^ 


i^' 


STATE  OF  CALIFORNIA. 


ADOPTED   MARCH   11,  1812,  AND  AMENDED  UP  TO 
AND   INCLUDING   189X^-"""'"~ 


JAMES  H. 

Of  the  San  Ft 


SAN  FRANCISCO 

BANCROFT-WHITNEY    CO 

Law  Publishers  and  Law  Booksellers, 
1897. 


Copyright  1897. 
BANCROFT-WHITNEY  CO. 


San  Francisco: 

THB  FlL>rER-ROLLINS  ELECTROTYPE  COMPANY, 
TYPOGRAPHERS  AND  STEREOTYPERS. 


CODE  OF  CIVIL  PROCEDURE. 


IN  FOUR  PARTS. 


PRELIMINARY  PROVISIONS.  §§  2-32. 
Part  I.    Of  Courts  of  Justice.    §§  33-304. 
II.    Of  CiTil  Actions.     §§  307  -1059. 

III.  Of  Special  Proceediugs  of  a  Civil  Nature. 

§§  10G3-1822. 

IV.  Of  Evidence.     §§  1823-2104. 
Insolvent  Act.    pp.  645-GG9. 


SUMMARY   OF   CONTENTS. 


PART  I— COURTS  OF  JUSTICE. 

Preliminary  Provisions.     §§  2-32. 

Title  I.    Courts    of    Justice— Their    Organization, 
Jurisdiction  and  Terms.     §§  33-153. 
II.    Judicial  Officers.     §§  156-187. 

III.  Persons  Invested    with  Judicial  Powers. 

§§  190-259. 

IV.  Ministerial  Officers  of  Courts  of  Justice. 

§§  262-274. 
v.    Persons  Invested  with    Ministerial   Pow- 
ers.    §§  275-304. 

PART  II— OF  CIVIL  ACTIONS. 

I.    Form  of  Civil  Actions.     §§  307-309. 
II.    Time  of  Commencing  Civil  Actions.     §§ 
312-363. 

III.  Parties  to  Civil  Actions.     §§  367-389. 

IV.  Place  of  Trial  of  Civil  Actions.     §§  392- 

400. 
V.    Manner  of    Commencing    Suit.     §§  405- 

416. 
VI.    Pleadings  in  Civil  Actions.     §§  420-476. 
VII.    Provisional  Remedies  in  Civil    Actions. 

§§  478-574. 
\'III.    Trial  and  Judgment  in  Civil  Actions.    §§ 
577-675. 


SUMMARY    OF    CONTENTS. 

IX.    Execution  of  tlie  Judgment  in  Civil  Ac- 
tions.    §§  681-721. 
X.    Actions  in  Particular  Cases.    §§  726-827. 
XI.    Proceedings  in  Justices'  Courts.     §§  832- 

920. 
XII.    Proceedings  in  Police    Courts.      §§  929- 
933. 
XIII.    Appeals  in  Civil  Actions.     §§  936-980. 
XIY.    Miscellaneous  Provisions.    §§989-1059. 


PART  III.— SPECIAL  PROCEEDINGS. 

Preliminary  Provisions.    §§  1063-1064. 

Title  I.    Writs  of  Mandate,   Review   and   Prohibi- 
tion.    §§  1067-1110. 
II.    Contesting  Elections.    §§  1111-1127. 

III.  Summary  Proceedings.     §§  1132-1179. 

IV.  Enforcement  of  Liens.     §§  1180-1206. 
y.    Contempt.     §§  1209-1222. 

Yl.    Voluntary  Dissolution    of    Corporations. 

§§   1227-1233. 
VII.    Eminent  Domain.     §§  1237-1263. 
VIII.    Escheated  Estates.     §§  1269-1272. 
IX.    Change  of  Names.     §§  1275-1279. 
X.    Arbitration.     §§  1281-1290. 
XI.    Proceedings  in  Probate  Courts.    §§  1294- 

1809. 
XII.    Sole  Traders.     §§  1811-1821. 
XIII.    Proceedings  in  Insolvency.     §  1822. 

PART  IV— OF  EVIDENCE. 

Title  I.    General  Principles  of  Evidence.     §§  1844- 
1870. 
II.    Kinds    and    Degrees    of    Evidence.     §§ 
1875-1978. 
III.     Production  of  Evidence.     §§  1981-2054. 


SUMMARY  OF  CONTENTS.  13 

IV.    Effect  of  Evidence.     §  2061. 
V.    Rights  aud    Duties    of    Witnesses.      §§ 
2064-2070. 

VI.    Evidence  in  Particular  Cases  and  Gen- 
eral Provisions.     §§  2074-2104. 

Code  Civ.   Proc— 2 


CORRESPONDING    SECTIONS 

OF   THE 

PRACTICE  ACT,  PROBATE  ACT 

AND 

Code  of  Civil  Procedure 


ice  Act. 

Code  C.  P. 

Practice  Act 

Code  C. 

1 

•§ 

307 

§  26 

.§ 

407 

2 

.§ 

308 

§  27 

.§ 

409 

3 

.§ 

309 

§  28 

.§ 

410 

4 

.§ 

367 

§  29 

.§ 

411 

5 

.§ 

368 

§  30 

.§ 

412 

6 

.§ 

369 

§  31 

.§ 

413 

7 

.§ 

370 

§  32 

.5 

414 

8 

.§ 

371 

§  33 

.§ 

415 

9 

.§ 

372 

§  34 

.§ 

415 

10 

.§ 

373 

§  35 

.§ 

416 

11 

.§ 

370 

§  36 

.§ 

420 

12 

.§ 

378 

§  37 

.§ 

421 

13 

.§ 

379 

§  38 

.§ 

422 

14 

.§ 

382 

§  39 

.§ 

426 

15 

.§ 

383 

§  40 

.§ 

430 

16 

.§ 

385 

§  41 

.§ 

431 

17 

.§ 

389 

§  42 

.§ 

431 

18 

.§ 

392 

§  43..... 

.§ 

432 

19 

.§ 

393 

§  44 

.§ 

433 

20 

.§ 

395 

§  45 

.§ 

434 

21 

.§ 

397 

§  46 

.§ 

437 

22 

.§ 

405 

§  47 

.§ 

438 

23 

.§ 

406-407 

§  48 

.§ 

440 

24 

.§ 

407 

§  49 

.§ 

447 

25 

.§ 

407 

§  50 

.§ 

443-4 

16  CORRESPONDING   SECTIONS. 

Practice  Act..  Code  C.  P.  Practice  Act.  Code  C.  P. 

453  §  88 §  494 

44G       §  89 §  495 

440       §  90 §  496 

447       §  91 §  497 

448-449   §  92 §  498 

440       §  93 §  499 

454  §  94 S  500 

453       §  95 §  501 

455  §  96 §  502 

450       §  97 §  503 

457       §  98 §  504 

459       §  99 §  509 

400  §  100 §  510 

401  §  101 §  511 

427       §  102 §  512 

402  §  103 §  513 

403  §  104 §  514 

404-472    §  105 §  515 

473  §  100 §  516 

474  §  107 §  517 

452       §  108 §  518 

475  §  109 §  519 

478  §  110 §  520 

479  §  111 §  525 

480  §  112 §  520 

481  §  113 §  527 

482  §  114 §  528 

483  §  115 §  529 

484  §  110 §  530 

485  §  117 §  531 

480       §  118 §  532 

487  §  119 §  533 

488  §  120 §  537 

489  §  121 §  538 

490  §  122 §  539 

491  §  123 §  540 

492  §  124 §  541 

493  §  125 §  542 


50.  .. 

..  .§ 

51... 
52.  .. 

...§ 

. .  .§ 

53.  .. 

. .  .^ 

54.  .. 

s 

55.  . . 

. .  .§ 

50.  .. 

. .  .§ 

57.  .. 

..  .^ 

58.  .. 

§ 

59.  .. 

§ 

00.  .. 

§ 

61.  .. 

..  .§ 

02... 
03.  .. 

...§ 

64.  .. 

$ 

65.  .. 

..  .§ 

60.  .. 

§ 

67.  .. 

8 

68 § 

09.  .. 

..  .§ 

70.  .. 

s'i 

71.  .. 

..  .§ 

72 

..  .§ 

73.  .. 

..  .§ 

74.  .. 

..  .§ 

.       8 

70.  .. 

.  .  .§ 

77.  . . 

78.  .. 

...§ 
.  .  .§ 

79.  .. 

.       8 

80.  .. 

.  .  .4; 

81.  .. 

§ 

82.  .. 

.  .  .i? 

83.  . . 

..     § 

84     . 

& 

85 

a 

80.  .. 

..  .§ 

87... 

...§ 

CORRESPONDING   SECTIONS.  17 

Practice  Act.     Code  C.  P.    Practice  Act     Code  C.  P. 

§  12G §     548  §  164 §  615 

§  127 §     544  §  165 §  608 

§  128 S     545  §  166 §  613 

§  129 §546  §  167 §  612 

§  130 §     547  §  168 §  614 

§  131 §     549  §  169 §  616 

§  132 ^5     550  §  170 §  617 

§  133 §     551  §  171 §  618 

§  134 §     552  §  172 §  619 

§  135 §     553  §  173 §  618 

§  136 §     554  §  174 §  624 

§  137 §     555  §  175 §  625 

§  138 §     556  §  17(} §  626 

§  139 §     557  §  177 §  627 

§  140 S     558  §  178 S  628 

§  141 §     559  §  179 §  631 

§  142 §     572  §  180 §  633 

§  143 §     564-569         §  181 §  636 

§  144 §577  §  182 §  638 

§  145 §     578  §  183 §  639 

§  146 §579       §  184 §  640 

§  147 §  580       §  185 §  641 

§  148 §  581       §  186 §  642 

§  149 §  582       §  187 §  643-6-i5 

§  150 §585       §  188 §  646 

§  151 §  588       §  189 §  649-652 

§  152 §  589       §  190 §  648 

§  153 §  590       §  191 §  647 

§  154 §591       §  192 §  656 

§  155 §  592       §  193 §  657 

§  156 §  593       §  194 §  661 

§  157 S  594       §  195 §  661 

§  158 §  595       §  196 §  661 

§  159 §  600       §  197 §  664 

§  160 §  604       §  198 §  665 

§  161 §  601       §  199 §  666 

§  162 §  602       §  200 §  667 

§  163...... §  603       §  201 §  668 


]8  CORRESPONDING   SECTIONS. 

Practice  Act.    Code  C.  P.    Practice  Act.   Code  C.  P. 


§  202... 

...§ 

669 

§  240... 

...§ 

716 

§  203... 

...§ 

670 

§  241... 

...§ 

717 

§  204... 

...§ 

671 

§  242... 

...§ 

718 

§  205... 

...§ 

672 

§  243... 

...§ 

719 

§  206... 

...§ 

673 

§  244... 

...§ 

720 

§  207... 

...§ 

674 

§  245... 

...§ 

721 

§  208... 

...§ 

675 

§  246... 

...§ 

726 

§  209... 

...§ 

681 

§  247... 

...§ 

727 

§  210... 

...§ 

682 

§  248. . . 

...§ 

728 

§  211... 

. .  .  Canceled. 

§  249... 

...§ 

731 

§  212... 

...§ 

683 

§  250... 

...§ 

732 

§  213... 

...§ 

684 

§  251... 

...§ 

732 

§  214... 

...§ 

685 

§  252... 

...§ 

734 

§  215... 

...§ 

686 

§  253... 

...§ 

735 

§  216... 

...§ 

687 

§  254... 

...§ 

738 

§  217... 

...§ 

688 

§  255... 

...§ 

739 

§  218... 

...§ 

689 

§  256... 

...§ 

740 

§  219... 
§  220... 

...§ 
...§ 

690 

§  257. .. 

..  .§ 

741 

691 

§  258... 

...§ 

742 

§  221... 

...§ 

692 

§  259... 

...§ 

743 

§  222... 

...§ 

693 

§  260... 

...§ 

744 

§  223... 

...§ 

694 

§  261... 

...§ 

745 

§  224... 

...§ 

695 

§  262... 

...§ 

746 

§  225... 

...§ 

696 

§  263... 

...§ 

747 

§  226... 

697 

§  264... 

...§ 

752 

§  227... 

...§ 

698 

§  265... 

...§ 

753 

§  228... 

699 

§  266... 

...§ 

754 

§  229... 

...§ 

700 

§  267... 

...§ 

755 

§  230. .. 

701 

§  268... 
§  269... 

8 

756 

§  231... 

...§ 

702 

...§ 

757 

§  232. .. 

..  .§ 

703 

§  270. . . 

..  .^ 

758 

§  233... 

...§ 

704 

§  271... 

...§ 

759 

§  234... 

...§ 
..  .§ 

705 
706 

§  272... 

..  .§ 

760 

§  235. .. 

§  273. .. 

..  .§ 

761 

§  236... 

...§ 

707 

§  274... 

...§ 

762 

§  237... 

...§ 

708 

§  275. . . 

...§ 

763 

§  238... 

...§ 

714 

§  276... 

...§ 

764 

§  239... 

...§ 

715 

§  277... 

...§ 

765 

CORRESPONDING  SECTIONS.  19 

I'raetice  Act.     Cede  C.  P.    Practice  Act.    Code  C.  P. 

§  278..... ..§     im  §  310 §     809 

§  279 §     767  S  317 §     813 

§  280 §     708  §  318 S     814 

§  281 §709  S  319 §     815 

§  282 §770  §  320 §     816 

§  283 §     771  §  321 §     817 

§  284 §     772  §  322 §     818 

§  285 §     773  §  323 §     819 

§  280 S     774  §  324 §     820 

§  287 §     775  §  325 §     821 

§  288 §776  §  326 §     822 

§  289 §     777  §  327 §  823 

§  290 §778  §  328 §  824 

§291 §  779  §329 §  825 

§  292 §  780  §  330 §  826 

§  293 §781  §  331 §  827 

§  294 §782  §  332 §  827 

§  295 §783  §  333 §  936 

§  296 §  784  §  334 §  937 

§  297 §  785  §  335 §  938 

§  298 §  786  §  336 §  939 

§  299 §  787  §  337 §  940 

§  300 §  788  §  338 

§  301 §  789  §  339 

§  302 §  790  §  340 Appeals 

§303 §  791  §341 §§936-959 

§  304 §  792  §  342 

§  305 §793  §  343 

§  306 §  794  §  344 

§  307 §  795  §  345 §  956 

§  308 §  796  §  346 §  950-954 

§  309 §  797  §  347 §  963 

§  310 §  803  §  348 §  941 

§  311 §  804  §  349 §  942 

§  312 §  805  §  350 §  943 

§  313 §  806  §  351 §  944 

§  314 §  807  §  352 §  945 

§  315 §  808  §  353 §  946 


20  CORRESPONDING   SECTIONS. 

Practice  Act.  Code  C.  F.  Practice  Act.  Code  C.  P. 

§  354 §  947  §  392 §  1879 

§  355 §  948  §  393  Repealed  1870 

§  350 §  949  §  394 §  1880 

§  357 §  395 §  1881 

§  358 §  958  §  390 §  1881 

§  359 §  900  S  397 §  1881 

§  300 §  941  §  398 §  1881 

§  301 .§  941  §  399 §  1881 

*5  302 §  941  §  400 §  1883 

§  303 Kepealed.    §  401 §  1884 

§  304 Repealed.  §  402 §  1985 

§  305 Repealed.  §  402 §  1989 

§  300 Repealed.  §  403 §  1980 

§  307 §  980  §  404 §  1987 

§  308 §  989  §  405 §  1988 

§  309 §  990  §  400 §  1990 

§370 §  991  §407., §2004 

§  371 §  992  §  408 §  2005 

§  372 §  993  §  409 ^^  1991 

§  373 §  994  §  410 §  1992 

§  374 §  1132  §  411 §  1993 

{^  375. §  1133  §  412 §  1995 

§370 §1134  §413 §1990 

^  377 §  1138  §  414 §  1997 

§  378 §  1139  §  415 §  2000 

§  379 §  1140  §  410 §  2008-9 

§  380 §  1281  §  417 

§  381 §  1282  §  418 

§  382 §  1283  §  419 Repealed. 

§  383 §  1284  §  420 '08,  701 

§  384 §  1285  §  421 

§  385 §  1280  §  422 

§  380 §  1287  §  423 

§  387 §  1288  §  424 §  2012 

§  388 §  1289  §  425 §  2013 

§  389 §  1290  §  420 §  2014 

§  390 §  997  §  427 §  2015 

§  391 §  1879  §  428 §  2021 


CORRESPONDING    SECTIONS.  21 

Practice  Act.  Code  G.  P  Practice  Act.  Code  C.  P. 

§  429 §  2031       §  4G7 §  1085 

§  480 §  2032       §  4G8 §  108G 

§  431 §  2034       §  409 §  1087 

§  432 §  2020       §  470 §  1088 

§  433 §  2024       §  471 §  1089 

§  434 §  2025       §  472 §  1090 

§  435 §  202G       §  473 §  1091 

§  43G S  2027       §  474 §  1092 

§  437 §  2083       §  475 §  1093 

S  438 §  2084       §  47G §  1094 

§  439 §  2085       §  477 §  1095 

§  440 §  20SG       §  478 §  109G 

§  441 §  2087       §  479 §  1097 

S  442 §  2088       §  480 §  1209 

§  443 §  2093       §  481 §  1211 

§  444 §  209G       §  482 §  1212 

S  445 §  2097       §  483 §  1213 

§  44G §  1000       §  484 §  1214 

§  447 §  1855       §  485 §  1215 

§  448 §  1982       §  48G §  1216 

§  449 §  1905       §  487 §  1217 

§  450 §  1905-22    §  488 §  1218 

§  451 §  190G       §  489 §  1219 

§  452 §  1907       §  491 §  1220 

§  453 §  1900       §  492 §  1221 

§  454 §  1930-31     §  493 §  1222 

§  455 §  1067       §  494 §  1021 

§  456 S  1068       §  495 §  1022 

§  457 §  10G9       §  496 §  1023 

§  458 §  1070       §  497 §  1024 

§  459 §  1071       §  498 §  1025 

§  460 §  1072       §  499 §  1026 

§  4(51 §  1073       §  500 §  1027 

§  462 §  1074  §  501  Kepl'd  1855,  250 

§  463 §1075  §  502  Kepl'd  1855,  250 

i5  464 §  1076  §  503  Repl'd  1855,  250 

§  465 §  1077                §  504 §  1028 

§  466 §  1084                §  505 §  1029 


22  CORRESPONDING  SECTIONS. 

Practice  Act.  Code  C.  P.  Practice  Act.  Code  C.  P. 

§  506 §  1030       §  545 §  862 

§  507 §  1031       §  546 §  863 

§  508 §  1032       §  547 §  864 

§  509  Canceled.        §  548 §  865 

§  510 §  1033       §  549 § 

§  511 §  1035       §  550 §  875 

§  512 §  1036       §  551 §  865-538 

§  513 §  1057       §  552 §  866 

§  514 §  1037       §  553 §  867 

§  515 §  1003       §  554 §  868 

§  516 §  1004       §  555 §  869 

§  517 §  1005       §  556 §  870 

§  518 §  1006       §  557 §  870 

§519 §1010-16    §558 §  870 

§  520 §  1011       §  559 §  870 

§  521 §  1012       §  560 §  870 

§  522 §  1013       §  561 §  870 

§  523 §  1014       §  562 §  870 

§524 §1015       §563 §  870 

§  525 §  1047       §  564 §  870 

§  526 §  1048       §  565 §  870 

§  527 §  1050       §  566 §  870 

§  528 §  1052       §  567 §  1057 

§  529 §  1053       §  568 §  978 

§  530 §  1054       §  569 §  870 

§  531 §  1046       §  570 §  852 

§  532 §361       §  571 §  851 

§  534 §  842       §  572 §  851 

§  535 §  832       §  573 §  853 

§  536 §  889       §  574 §  855 

§  537 §  576 §  886 

§  538 §  839       §  577 §  887 

§  539 §  843       §  578 §  854-6-7 

§  540 §  844       §  579 §  469 

§  541 §  845       §  580 §  858 

§  54"2 §  849       §  581 §  838 

§  543 §  849       §  582 §  833 

§  544 §  861       §  583 §  875  6 


CORRESPONDING   SECTIONS.  23 

Practice  Act.    Code  C.  P.  Practice  Act.    Code  C.  P. 

§  584 §  875-6  §  623 §     659 

§  585 §  877  §  624 §     974 

§  586 §  870-72  §  625 §  975 

§  587 §  881-2  §  626 §  976 

§  588 §  250  §  627 §  977 

§  589 §  227  §  628 §  978 

§  590 §  885  §  629 §  979 

§  591 §  890  §  630  llepl'd  1854,  100 

§  592 §  870-1  §  631 §  924 

§  593 §  .  881  §  632  Kepl'd  1855,  250 

§  594 §  891-2  §  633 §  921 

§  595 §  894  §  634 §  923 

§  596 §  895  §  635 §  925 

§  597 §  893  §  636 §  929 

§  598 §  896  §  637 §  930 

§  599 §  897-900  §  638 §  931 

§  600 §  90L  §  639 §  932 

§  601 §  902  §  640 §  974 

§  602 §  904  §  641 §  933 

§  603 §  925  §  643 §  129-30 

§  604 §  911  §  645 §  1055 

§  605 §  912  §  646 §  1056 

§  606 §  913  §  647 §  1058 

§  607 §  914-915  §  650 §  1057 

§608 §  916  §651 §  564-69 

§  609 §  917  §  652 §  564-69 

§  610 §  918  §  653 §  1108 

§  611 §  920  §  654 §  548 

§  612 §  922  §  655 §  1918-19 

§  613 §  849  §  656 §  388 

^614 §  849  §  658 §  386 

§  616 §  906  §  659 §  387 

§  617 §  907-9  §  660 §  887 

§  618 §910  §  661 §  387 

§  619 i5  919  §  662 §  387 

§  620 §  2019  §  663 §  1051 

§  621 §  748  §  664 §  596 

s^  622 §  657  §  665 § 


-'4  CORRESPONDING   SECTIONS. 

Probate  Act.  Code  C.  P.   Probate  Act.  Code  C.  P. 

§   2 §  1294       §  41 §  1349 

§   3 §  1295  §  42 §  1350 

§   4 S  1298  §  43 §  1351 

S   5 §  1299  §  44 §  1352 

§   (3 §  1300  §  45 §  1353 

§   7 §  1298  §  46 §  1354 

§   8 §  1299  §  47 §  1355 

§   9 «5  1299  §  48 §  1356 

§  10 §  1302  §  49 §  1356 

§  11 S  1302  §  50 §  1360 

§  12 §  1305  §  51 §  1361 

§  13 §  1.303  §  52 §  1365 

§  14 §  1304  §  53 §  1366 

§  15 §  1304  §  54 §  1367 

§  16 §  1303  §  55 §  1369 

§  17 §  1306  §  56 §  1370 

§  18 §  1307  §  57 §  1368 

§  19 §  1308  §  58 §  1371 

§  20 §  1312  §  59 §  1372 

§  21 §  1315  §  60 §  1373 

§  22 §  1315  §  61 §  1374 

§  23 §  1316  §  62 §  1375 

§  24 §  1317  §  63 §  1376 

§  25 §  1318  §  64 §  1377 

§  27 S  1322  §  65 §  1378 

§  28 §  1323  §  66 §  1379 

J^  29 §  1324  §  67 §  1383 

§  30 §  1327  §  68 §  1384 

§  31 §  1328  §  69 §  1385 

§  32 §  1329  §  70 §  1386 

§  33 §  1330  §  71 §  1362 

§  34 §  1331  §  72 §  1387 

§  35 §  1332  §  73 §  1388-9(> 

§  36 §  1333  §  74 §  1391 

§  37 §  1338  §  75 §  1392 

§  38 §  1339  §  76 §  1393 

§  39 §  1340  §  77 §  1.396 

§  40 §  1341  S  78 §  1397 


CORRESPONDING   SECTIONS.  25 

Probate  Act.  Code  C.  P.  Probate  Act.  Code  C.  P. 

§  79 §  1398  §  117 §  1459 

§  80 §  1399  §  118 §  1460 

§  81 §1400  §119 §1461 

§  82 §  1401  §  120 §  1464 

§  83 §1402  §121 §1465-75 

§  84 §  1403  §  122 §  1466 

§  85 §  1404  §  123 §  1467 

§  86 §  1405  §  125 §  1468 

§  87 §  1406  §  126 §  1469 

§  88 §  1411  §  127 §  1470 

§  89 §  1412  §  128 §  1490-91 

§  90 §  1413  §  129 §  1492 

§  91 §  1414  §  130 §  1493 

§  92 §  1415  §  131 §  1394-95 

§  93 §  1416  §  132 §  1496 

§  94 §1417  §133 §1497 

§  95 §  1411  §  134 §  1498 

§  96 §  1425  §  135 ^  1499 

§  97 §  1426  §  136 §  1590 

§  98 §  1423  §  137 §  1501 

§  99 §  1424  §  138 §  1502 

§  100 §  1427  §  339 §  1503 

§  101 §  1428  §  140 §  1504 

§  102 §  1429  §  141 §  1505 

§  103 §  1430  §  142 §  1507 

§  104 §  1432-33  §  143 §  1508 

§  105 §  1443  §  144 §  1.509 

§  106 §  1444  §  145 §  1510 

§  107 §  1445  §  146 §  1511 

§  108 §  1446  §  147 §  1512 

§  109 §  1447  §  148 §  1517 

§  110 §  1448  §  149 4i  1518 

§  111 §  1449  §  150 §  1522-23 

§  112 §  1450  §  151 §  1.525 

'^  §  113 §  1451  §  152 §  1526 

§  114 §  1452-53  §  153 §  1.526 

§  115 §  1516  §  153 §  1530-31 

§  116 §  1458  §  154 §  1.536 

Code  Civ.  Proc— 3. 


26  CORRESPONDING   SECTIONS. 

Probate  Act.  Code  0.  P.  Probate  Act.  Code  C.  P. 

§155 §1537       §193 §1576 

§  15G §  1538       §  194 §  1581 

§  157 §  1539       §  195 §  1582 

§  158 §  1540       §  19G §  1583 

§  159 §  1539       §  197 §  1584 

§  160 §  1541       §  198 §  1585 

§  161 §  1542       §  199 §  1586 

§  162 §  1543       §  200 §  1587 

§163 §1544       §201 §1588 

§  164 §  1545       §  202 §  1589 

'  §  165 §  1546       §  203 §  1590 

§  166 §  1547       §  204 §  1591 

§  167 §  1548-50     §  205 §  1597 

§  168 §  1551       §  206 §  1598 

§  169 §  1552       §  207 §  1599 

§  170 §  1553       §  208 §  1600 

§  171 §  1554       §  209 §  1601 

§  172 §  1555       §  210 §  1602 

v^  173 §1556       §211 §1603 

i^  174 §  1557       §  212 §  1604 

§  175 §  1558       §  213 §  1605 

§  176 §  1559       §  214 §  1606-7 

§  177 §  1560       §  215 §  1612 

§178 §1561       §216 §1613 

§179 §1562       §217 §1614 

§  180 §  1563       §  218 §  1615 

§  181 §  1564       §  219 §  1616 

§  182 §  1565       §  220 §  1617 

S  183 §  1566       §  221 §  1618 

§  184 §  1567       §  222 §  1622 

§185 §1568       §223 §1623 

§  186 §  1569-70     §  224 §  1624 

§  187 §  1569       §  225 §  1625 

§  188 §  1571       §  226 §  1626 

§189 §1572       §227 §1627 

^190 §  1573       §  228 §  1628 

55  191 §  1574       §  229 §  1629 

§  192 §  1575       §  230 §  1630 


CORRESPONDING   SECTIONS.  27 

Probate  Act.  Code  C.  P.  Probate  Act.  Code  C.  P. 

.  §231 §1631  §270 §1683 

§  232 §  1632  §  271 §  1684 

§  233 §  1633  §  272 §  1685 

§  234 §  1635  §  273 §  1686 

§  235 §  1636  §  274 §  1691 

§  236 §  1636  §  275 §  1692 

§  237 §  1637  §  276 §  1693 

§  238 §  1638  §  277 §  1695 

§  239 §  1643  §  278 §  1696 

§  240 §  1644  §  279 §  1697 

§  241 §  1645  §  280 §  1698 

§  242 §  1646  §  281 §  1436 

§  243 §  1647  §  282 §  1411 

§  244 §  1648  §  283 §  1437 

§  245 §  1649  §  284 §  1438 

§  246 §  1650  §  285 §  1439 

§  247 §  1651  §  286 §  1440 

§  248 §  1652  §  287 §  1704-5 

§  249 §  1653  §  288 §  1710 

§  250 §  1658  §  289 §  1709 

§251 §1659  §290 §1711 

§  252 §  1660  §  291 §  2093 

§  253 §  1661  §  293 §  1713 

§  2.54 §  1661  §  294 §  1616-17 

§  255 §  1661  §  295 §  1718 

§  256 §  1661  §  296 §  1719 

§  257 §  1662  §  297 

§  258 §  1665  §  298 

§  259 §  1666-67  §  299 

§  260 §  1668-69  §  300 See  §§ 

§  261 §  1675  §  301 969-971 

§  262 §  1677  §  302 §  1720 

§  263 §  1676  §  302 §  1738 

§  264 §  1678  §  302 §  1739 

§265 §1679  §304 §1728 

§  266 §  1680  §  305 §  1729 

§  267 §  1681  §  305 §  1741-42 

§  268 §  1682  §  306 §  1730 


28  CORRESPONDING   SECTIONS. 

Frol)nte  Act.  Code  C.  1*.  Probate  Act.  Code  C.  P. 

§007 §1731  §354 §1778 

§  308 §  1732  §  355 §  1777 

§  309 §  1733  §  356 §  1778 

§310 §1734  §357 §1779 

§  311 §  1735  §  358 §  1780 

§  312 §  1730  §  359 §  1781 

§  315 §  3G0 §  1782 

§  316 §  361 §  1783 

§  317 §  362 §  1784 

§  318 §  363 §  1785 

'§  319.  .  .  See  Civil  Code  §  364 §  1786 

§  320 §§  1385-1399  §  365 §  1787 

§  321 §  366 §  1788 

§  322 §  367 §  1789 

'  §  323 §  368 §  1790 

§  324 §  369 §  1806 

§  325 §  370 §  1774 

§  326 §  371 §  1792 

§  328 §  1269  §  372 §  1801 

§  329 §  1271  §  373 §  1802 

§  331 §  1272  §  374 §  1803 

§  336 §  1747  §  375 §  1804 

§  337 §  1748  §  376 §  1805 

§  338 §  1749  §  377 §  1800 

§  339 §  1750  §  378 §  1793 

§  340 §  1751  §  379 §  1794 

§  341 §  1752  §  380 §  1795 

§  342 §  1753-54  §  381 §  1796 

§  343 §  1754  §  382 §  1776 

§  344 §  1757  §  383 §  1807 

§  345 §  1758  §  384 §  1775 

§  346 §  1759  §  385 §  1791 

§  347 §  1763  §  386 §  1797 

§  348 §  1764  §  387 §  1798 

§  349 §  1765  §  388 §  1799 

§  350 §  1768  §  389 

§  351 §  1769  §  390 Civii  Code 

§  352 §  1770  §  391 Sections 

§  353 §  1772  §  392 264-267 


AN  ACT  TO  ESTABLISH  A 

CODE  OF  CIVIL  PHOCEBURE. 


The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

TITLE   OF  ACT. 

§  1.     Title  and  division  of  this   volume. 

§  1.  This  act  shall  be  known  as  The  Code  of 
Civil  Procedure  of  California,  and  is  divided  into 
four  parts,  as  follows: 

Part    I.  Of  Courts  of  Justice. 

II.  Of  Civil  Actions. 

III.  Of  Special  Proceedings  of  a  Civil  Nature. 

ly.  Of  Evidence. 

This  act,  hoAv  cited:  Sec.  19,  post. 
Construction  of  the  codes  and  of  their  various 
sections:  See  Pol.  Code,  sees.  4478  et  seq. 


THE 

CODE  OF  CIVIL  PROCEDURE 

OF    CALIFORNIA. 


PRELIMINARY   PROVISIONS. 

§    2.  When   this   Code   takes   effect. 

§    3.  Not  retroactive. 

§    4.  Rule   of   construction   of   this   Code. 

§    5.  Provisions   similar   to   existing   laws,    how   construed. 

§    6.  Tenure  of   office   preserved. 

§    7.  Construction    of   repeal   as   to    certain    officers. 

§    8.  Actions,  etc.,  not  affected  by  this  Code. 

§    9.  Limitations   shall    continue   to   run. 

§  IQ,  Holidays. 

§  11.  Same. 

§  12.  Computation   of  time. 

§  13.  Certain    acts   not   to   be    done   on    holidays. 

§  14.  "Seal"   defined. 

§  15.  Joint  authority. 

§  16.  Words  and  phrases. 

§  17.  Certain  terms  used  in  this  Code  defined. 

§  18.  Statutes,    etc.,    inconsistent  with   Code   repealed. 

§  19.  This  act,   how   cited,   enumerated. 

§  20.  Judicial    remedies    defined. 

§  21.  Division   of   judicial    remedies. 

§  22.  Action  defined. 

§  23.  Special   proceeding  defined. 

§  24.  Division  of  actions. 

§  25.  Civil  actions  arise  out  of  obligations  or  injuries. 

§  26.  Obligation  defined. 

§  27.  Division  of  injuries. 

§  28.  Injuries    to    property. 

§  29.  Injuries   to   the   person. 

§  30.  Civil  action,  by  whom  prosecuted. 

§  31.  Criminal  actions. 

§  32.  Civil  and  criminal  remedies  not  merged. 

§  2.  This  Code  takes  effect  at  twelve  o'clock 
noon,  on  the  first  day  of  January,  eighteen  hun- 
dred and  seventy-three. 

See  sees.  8,  18. 


21  PRELIMINARY   PROVISIONS.  §§  3-* 

Effect  of  codes  generally :  See  Polit.  Code,  sees. 
4478  et  seq. 

§  3.    No  part  of  it  is  retroactive,  unless  express- 
ly so  declared. 
See  sec.  IS. 
Impairing-  vested  rights:    See  sec.  8,  post. 

§  4.  The  rule  of  the  common  law,  that  statutes 
in  derogation  thereof  are  to  be  strictly  construed, 
has  no  application  to  this  Code.  The  Code  estab- 
lishes the  law  of  this  State  respecting  the  subjects 
to  which  it  relates,  and  its  provisions  and  all  pro- 
ceedings under  it  are  to  be  liberally  construed, 
with  a  view  to  effect  its  objects  and  to  promote 
justice. 

Construction  of  codes  with  relation  to  each  other, 
and  reconciling  conflicts  between  titles,  chapters, 
and  articles:    See  Polit.  Code,  sees.  4478  et  seq. 

Construction  of  statutes:   See  sees.  1858,  1859. 

Liberal  interpretation:  See  sees.  452,  475. 

§  5.  The  provisions  of  this  Code,  so  far  as  they 
are  substantially  the  same  as  existing  statutes, 
must  be  construed  as  continuations  thereof,  and 
not  as  new  enactments. 

See  sec.  18. 

§  6.  All  persons  who  at  the  time  this  Code  takes 
effect  hold  office  under  any  of  the  acts  repealed 
continue  to  hold  the  same  according  to  the  tenure 
thereof,  except  those  offices  which  are  not  con- 
tinued by  one  of  the  codes  adopted  at  this  session 
of  the  Legislature. 

See  next  section. 

§  7.  When  any  office  is  abolished  by  the  repeal 
of  any  act,  and  such  act  is  not  in  substance  re- 


i55  8-10  PRELIMIXARY  PROVISIONS.  32 

enacted  or  eontiuued  in  either  of  tlie  Codes,  sucli 
ottice  ceases  at  tlie  time  tlie  Codes  take  effect. 
Repeals  by  implication:    See  sec.  18,  post. 

§  8.  No  action  or  proceeding  commenced  before 
this  Code  tal^es  effect,  and  no  right  accrued,  is  af- 
fected by  its  provisions,  but  the  proceedings  there- 
in must  conform  to  the  requirements  of  this  Code 
as  far  as  applicable. 

See  Civil  Code,  sees.  0,  20;  also  repealing  clause 
at  the  end  of  this  Code. 

§  9.  When  a  limitation  or  period  of  time  pre- 
scribed in  any  existing  statute  for  acquiring  a 
riglit  or  barring  a  remedy,  or  for  any  other  pur- 
pose, has  begun  to  run  before  this  Code  goes  into 
effect,  and  the  same  or  any  limitation  is  prescribed 
in  this  Code,  the  time  Avhich  has  already  run  shall 
be  deemed  part  of  the  time  prescribed  as  such 
limitation  by  this  Code.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  1.  In  effect 
July  1st,  1874.] 

See  sees.  361,  362. 

Limitation  of  actions:    See  post,  sees.  312  et  seq. 

§  10.  Holidaj's  within  the  meaning  of  this  Code 
are  every  Sunday,  the  tirst  day  of  January,  the 
twenty-second  day  of  February,  the  thirtieth  day 
of  May,  the  fourth  day  of  July,  the  ninth  day  of 
September,  the  first  Monday  in  September,  the 
twenty-fifth  day  of  December,  every  day  on  which 
an  election  is  held  throughout  the  State,  and  every 
day  appointed  by  the  President  of  the  United 
States,  or  by  the  Governor  of  this  State,  for  a  pub- 
lic fast,  thanksgiving,  or  holiday.  If  the  first  day 
of  January,  the  tAventy-second  day  of  February, 
ihe  thirtieth  day  of  May,  the  fourth  day  of  July, 
(he  ninth  day  of  September,  or  the  twenty-fifth 
day  of  December  fall  upon  a  Sunday,  the  Monday 


33  PRELIMINARY  PROVISIONS.  §§  11-11 

following  is  a  holiday.  [Approved  February  2o, 
Stats.  1897,  ch.  XIX.    In  effect  immediately.] 

Also  amended  in  1889,  Stats.  1889,  46,  and  1893. 
Stats.  1893,  186. 

Nonjudicial  days:   See  post,  134. 

§  11.  If  the  first  day  of  January,  the  twenty- 
second  day  of  February,  the  fourth  day  of  July, 
or  the  twenty-fifth  day  of  December,  falls  upon  a 
Sunday,  the  Monday  following  is  a  holiday. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  279.    In  effect  July  1st,  1874.] 

Holidays,  when  counted:    See  sec.  13. 

§  12.  The  time  in  which  any  act  provided  by 
law  is  to  be  done  is  computed  by  excluding  the 
first  day  and  including  the  last,  unless  the  last 
day  is  a  holiday,  and  then  it  is  also  excluded. 

Time  to  amend:    See  sec.  476. 

Time,  how  computed,  and  year,  week,  and  day 
defined:     Folit.  Code,  sees.  3255  et  seq. 

§  13.  "Whenever  any  act  of  a  secular  nature, 
other  than  a'  work  of  necessity  or  mercy,  is  ap- 
pointed by  law  or  contract  to  be  performed  upon 
a  particular  day,  which  day  falls  upon  a  holiday, 
such  act  may  be  performed  upon  the  next  busi- 
ness day,  with  the  same  eft'ect  as  if  it  had  been 
performed  upon  the  day  appointed. 

§  14.  When  the  seal  of  a  court,  public  officer, 
or  person,  is  required  by  law  to  be  affixed  to  any 
paper,  the  word  "seal"  includes  an  impression  of 
.such  seal  upon  the  paper  alone,  as  well  as  upon 
wax  or  a  wafer  affixed  thereto. 

Seals:   See  sees.  147  to  153,  and  1929  to  1934. 

Seals  other  than  official  are  abolished  by  the 
Civil  Code,  sec.  1629. 


§§  15-17  PRELIMINARY  PROVISIONS.  34 

Court  seals:    See  sees.  147  et  seq.,  post. 
Seals  for  private  writings:    See  see.  1929,  post. 

§  15.  Words  giving  a  joint  authority  to  three  or 
more  public  officers  or  other  persons  are  con- 
strued as  giving  such  authority  to  a  majority  of 
them,  unless  it  is  otherwise  expressed  in  the  act 
giving  the  authority. 

§  16.  Words  and  phrases  are  construed  accord- 
ing to  the  context  and  the  approved  usage  of  the 
language;  but  technical  words  and  phrases,  and 
such  others  as  have  acquired  a  peculiar  and  appro- 
priate meaning  in  law,  or  are  defined  in  the  suc- 
ceeding section,  are  to  be  construed  according  to 
such  peculiar  and  appropriate  meaning  or  defini- 
tion. 

§  17.  Words  used  in  this  Code  in  the  present 
tense  include  the  future  as  well  as  the  present; 
words  used  in  the  masculine  gender  include  the 
feminine  and  neuter;  the  singular  number  includes 
the  plural,  and  the  plural  the  singular;  the  word 
"person"  includes  a  corporation  as  well  as  a  natu- 
ral person;  writing  includes  printing;  oath  includes 
affirmation  or  declaration;  and  every  mode  of 
oral  statement,  under  oath  or  affirmation,  is  em- 
braced by  the  term  "testify,"  and  every  written 
one  in  the  term  "depose";  signature  or  subscrip- 
tion includes  mark,  when  the  person  cannot  write, 
his  name  being  written  near  it,  and  witnessed  by 
a  person  who  writes  his  own  name  as  a  witness. 

The  following  words  also  have  in  this  Code  the 
signification  attached  to  them  in  this  section,  un- 
less otherwise  apparent  from  the  context: 

1.  The  word  "property"  includes  both  real  and 
personal  property. 

2.  The  words  "real  property"  are  coextensive 
with  hinds,  tenements,  and  hereditaments. 


35  PRELIMINARY   PROVISIONS.  §  18 

3.  The  words  "personal  property"  include 
money,  goods,  chattels,  things  in  action,  and  evi- 
dences of  debt. 

4.  The  word  "month"  means  a  calendar  mouth, 
unless  otherwise  expressed. 

5.  The  word  "will"  includes  codicils. 

6.  The  word  "writ"  signifies  an  order  or  precept 
in  Avriting,  issued  in  the  name  of  the  people,  or  of  a 
court  or  judicial  ofllcer,  and  the  word  "process" 
a  writ  or  summons  issued  in  the  course  of  judicial 
proceedings. 

7.  The  word  "State,"  when  applied  to  the  dif- 
ferent parts  of  the  United  States,  includes  the  Dis- 
trict of  Columbia  and  the  territories;  and  the 
words  "United  States"  may  include  the  district 
and  territories.  [Amendment,  approved  March  24, 
1874;  Amendments  1873-4,  280.  In  effect  July  1, 
1874.] 

Words  used  in  boundaries  are  defined  in  sections 
3903  to  3907  of  the  Political  Code. 

§  18.  No  statute,  law,  or  rule  is  continued  ii; 
force,  because  it  is  consistent  with  the  provisions 
of  this  code  on  the  same  subject;  but  in  all  cases 
provided  for  by  this  Code,  all  statutes,  laws,  and 
rules  heretofore  in  force  in  this  State,  whether 
consistent  or  not  with  the  provisions  of  this  Code, 
unless  expressly  continued  in  force  by  it,  are  re- 
pealed and  abrogated. 

This  repeal  or  abrogation  does  not  revive  any 
former  law  heretofore  repealed,  nor  does  it  affect 
any  right  already  existing  or  accrued,  or  any  ac- 
tion or  proceeding  already  taken,  except  as  in  this 
Code  provided;  nor  does  it  affect  any  private  stat- 
ute not  expressly  repealed. 

See  sees.  3,  8;  also  repealing  clause  at  the  end  of 
this  Code. 

Limitations.    See  sec.  9. 

Retroactive  effect.    See  sec.  3. 


§§  19-25  PRELIMINARY  PROVISIONS  36 

Statutes  continiUMl  in  force.  See  Polit.  Code,  sec. 
19. 

Vested    rights.     See    sec.    8. 

§  19.  This  act,  whenever  cited,  enumerated,  re- 
ferred to,  or  amended,  may  be  designated  simply 
as  the  "Code  of  Civil  Procedure,"  adding,  when 
necessary,  the  number  of  the  section. 

§  20.  Judicial  remedies  are  such  as  are  admin- 
istered by  the  courts  of  justice,  or  by  judicial  otti- 
cers  empowered  for  that  purpose  by  the  constitu- 
tion and  statutes  of  this  State. 

§  21.  These  remedies  are  divided  into  two  class- 
es: 

1.  Actions;  and, 

2.  Special  proceedings. 

1^  22.  An  action  is  an  ordinary  proceeding  in 
a  court  of  justice,  by  Avhich  one  party  prosecutes 
another,  for  the  enforcement  or  protection  of  a 
right,  the  redress  or  prevention  of  a  wrong,  or  the 
punishment  of  a  public  offense. 

>^  23.  Every  other  remedy  is  a  special  proceed- 
ing. 

See  sees.  52,  75,  1022,  1003,  10G4,  1109,  1110. 
and  Part  III  of  this  Code,  generally. 

Special  proceedings  of  a  civil  nature:  See  post, 
part  ?>,  sees.  1067  et  seq. 

§  24.    Actions  are  of  two  liinds: 

1.  Civil:  and, 

2.  Criminal. 

Civil  action,  form  of:  See  sec.  307,  post. 
Criminal  action:  See  infra,  sec.  31. 

§  25.    A  civil  action  arises  out  of: 

1.  An  obligation; 

2.  An  injury. 


■M  PRELIMINARY  PROVISIONS.  §§  26-32 

§  26.  An  obligation  is  a  legal  duty,  by  which 
one  person  is  bound  to  do  or  not  to  do  a  certain 
thing,  and  arises  from: 

1.  Contract;  or, 

2.  Operation  of  law.  [Amendment,  approved 
March  24,  1874;  Amendments  1873-4,  281.  In  effect 
•July  1,  1874.] 

Obligation,  what.  See  Civil  Code,  sec.  1427, 
1428. 

§  27.    An  injury  is  of  two  kinds: 

1.  To  the  person;  and, 

2.  To  property. 

§  28.  An  injury  to  property  consists  in  depriv- 
ing its  owner  of  the  benefit  of  it,  which  is  done  by 
taking,  withholding,  deteriorating  or  destroying- 
it. 

§  29.  Every  other  injury  is  an  injury  to  the 
person. 

§  30.  A  civil  action  is  prosecuted  by  one  party 
;i  gainst  another  for  the  enforcement  or  protection 
of  a  right,  or  the  redress  or  prevention  of  a  wrong. 

Forms  of  action.      See  post,  sec.  307,  et  seq. 

5;  31.    The  Penal  Code  defines  and  provides  for 
tlie  prosecution  of  a  criminal  action. 
Criminal  action  defined:  See  Fen.  Code,  §  G83. 

^  32.  When  the  violation  of  a  right  admits  of 
both  a  civil  and  criminal  remedy,  the  right  to 
pi'osecute  the  one  is  not  merged  in  the  other. 

Code  Civ.    Proc— 4 


PART  I. 

OF  COURTS  OF  JUSTICE. 


TITLE  I. 

ORGAMIZATION  AND  JURISDICTION. 

Chap.    I.    Courts  of  Justice  in  General,  §§  33,  34. 
II.    Court  of  Impeachment,  §§  36-39. 

III.  Supreme  Court,  §§  40-50. 

IV.  Superior  Court,  §§  65-79. 
V.    Justices'  Couits,  §§  85-115. 

VI.    Police  Courts,  §  121. 
VII.    General  Provisions  Respecting  Courts  of 
Justice,  §§  124-153. 
[Part  I,  §§  33-304,  amended  and  in  efCect  April  1, 
1880.    Amendments  1880,  21.] 

CHAPTER  I. 

COURTS    OP   JUSTICE    IX    GENERAL. 

§  33.    The  several  courts  of  this  State. 
§  34.    Courts  of  record. 

§  33,  Tlie  folloT^ing-  are  the  Courts  of  Justice  of 
this  State: 

1.  The  Court  of  Impeachment; 

2.  The  Supreme  Court; 

3.  The  Superior  Courts; 

4.  The  Justices'  Courts; 

5.  The  Police  Courts  and  such  other  inferior 
courts  as  the  Legislature  may  establish  in  any  in- 
(rorporated  city  or  town,  or  city  and  county. 


^-9  COURT   OF   IMPEACHMENT.  §§  34-37 

See  Const.  CaL,  arts.  3,  G. 
For  subd.  5,  see  Const.  Cal.  art.  6,  sec.  13. 
Jurisdiction  of  tlie  above  courts  is  considered, 
post,  in  tlie  various  cliapters  treating  thereof. 
Court  of  impeachment:  See  post,  sees.  36  et  seq. 
Supreme  Court:  See  post,  sees.  40  et  seq. 
Superior  courts:  See  post,  sees.  65  et  seq. 
Justices'  courts:  See  post,  sees.  85  et  seq. 
Police  courts:  Sec.  121. 

§  34.  The  courts  enumerated  in  the  first  three 
subdivisions  of  the  last  preceding-  section  are  courts 
of  record. 

Const.  Cal.  art.  6,  sees.  12,  22. 

CHAPTER  II. 

COURT   OF  IMPEACHMENT. 

§  36.    Members  of  the  court. 
§  37.    Jurisdiction. 
§  38.     Officers  of  the  court. 

§  39.    Trial   of  impeachments    provided     for     in   the     Penal 
Cede. 

§  36.     The  Court  of  Impeachment  is  the  Senate; 

when  sitting  as  such  court,  the  senators  shall  be 

upon  oath;  and  at  least  two-thirds  of  the  members 

elected  shall  be  necessary  to  constitute  a  quorum. 

•  Const.  Cal.,  art.  G,  sees.  12,  22. 

§  37.  The  court  has  jurisdiction  to  try  impeach- 
ments, when  presented  by  the  Assembly,  of  the 
Governor,  Lieutenant-Governor,  Secretary  of 
State,  Controller,  Treasurer,  Attorney-General, 
Surveyor-General,  Chief  Justice  of  the  Supreme 
Court,  Associate  Justices  of  the  Supreme  Court, 
and  Judges  of  the  Superior  Courts  for  any  mis- 
demeanor in  office. 

Const.  Cal.  art.  4,  sec.  18. 


§§  38-40  SUPREME    COURT.  40 

§  38.    The  oflioers  of  the  Senate  are  the  officers 
of  the  court. 
See  Penal  Code,  sees.  10,  and  737  to  753. 

§  39.  Proceeldiugs  on  the  trial  of  impeachments 
are  provided  for  in  the  Penal  Code. 

Proceedings  for  removal.  See  Penal  Code,  sec. 
737  et  seq. 

CHAPTER  III. 

SUPREME    COURT. 

§  40.  Justices,   elections,   and  terms  of  office. 

§  41.  Computation  of   years   of   oflBce. 

§  42.  Vacancies. 

§  43.  Departments. 

§  44.  Apportionment  of  business. 

§  45.  Court  in  bank. 

§  46.  Absence  or  disability  of  Chief  Justice. 

§  47.  Sessions. 

§  48.  Adjournments. 

§  49.  Decisions   in   writing. 

§  50.  Jurisdiction   of  two   kinds. 

§  51.  Original   jurisdiction. 

§  52.  Appellate  jurisdiction. 

§  53.  Powers  in  appealed   cases. 

§•  54.  Concurrence  necessary  to  transact  business. 

§  55.  Transfer  of  books,  papers,  and  actions. 

§  56.  Remittiturs  in  transferred  cases. 

§  57.  Appeals  in  probate  proceedings. 

§  40.  The  Supreme  Court  shall  consist  of  a 
Chief  Justice  and  six  Associate  Justices,  who  shall 
be  elected  by  the  qualified  electors  of  the  State  at 
large,  at  the  general  state  elections  next  preceding 
the  expiration  of  the  terms  of  office  of  their  prede- 
cessors respectively,  and  hold  their  offices  for  the 
term  of  twelve  years  from  and  after  the  first  Mon- 
day after  the  first  day  of  January  next  succeeding 
their  election;  provided,  that  of  the  justices  elect- 
ed at  the  general  State  election  of  eighteen  hun-  . 
dred  and  seventy-nine,  the  Chief  Justice  shall  go 


41  SUPREME    COURT.  §§  41-42 

out  of  oflice  at  llie  end  of  eleven  years  aud  the  six 
Associate  Justices  shall  have  so  classified,  or  shall 
so  classify  tliemselves,  by  lot,  that  two  of 
theiii  shall  go  out  of  office  at  the  end  of  three 
years,  two  of  them  at  the  end  of  seven  years,  and 
two  of  them  at  the  end  of  eleven  years,  from  the 
tirsr  Monday  after  the  first  day  of  January,  eight- 
een hundred  and  eighty;  and  an  entry  of  such 
classification  shall  have  been  or  shall  be  made 
in  the  minutes  of  the  court  in  banlv,  signed  by 
them,  and  a  duplicate  thereof  filed  in  the  office  of 
the  Secretary  of  State. 

Const.  Cal.  art.  6,  sees.  2,  3. 

Eligibility.    Sec.  150. 

Jurisdiction  of  Supreme  Court:  See  post,  sees.  50- 
53. 

Vacancy  in  the  court:  See  sees.  42,  46. 

Acts  relating  to  Supreme  Court  commission.  See 
post,  Appendix,  790,  et  seq. 

§  41.  The  years  during  which  a  justice  of  the 
Supreule  Court  is  to  hold  office  are  to  be  compined 
respectively  from  and  including  the  first  Monday 
after  the  first  day  of  January  of  any  one  year  to 
and  excluding  the  first  Monday  after  the  first  day 
of  January  of  the  next  succeeding  year. 

Const.  Cal.  art.  (J,  sec.  3. 

§  42.  If  a  vacancy  occur  in  the  office  of  a  Jus- 
tice of  the  Supreme  Court,  tlie  Governor  shall 
appoint  an  eligible  person  to  hold  the  office  until 
the  election  and  qualification  of  a  justice  to  fill 
the  vacancy,  which  election  shall  take  place  at  the 
next  succeeding  general  election;  and  the  justice 
so  elected  shall  hold  the  office  for  the  remainder 
of  the  unexpired  term  of  his  predecessor. 

Const.  Cal.  art.  6,  sec.  3. 

Vacancy:  See  the  subject  generally,  Pol.  Code, 
sees.  995  et  seq. 


§S  43,  44  SUPREME  COURT.  42 

Absence  of  chief  justice:  See  infra,  sec.  46. 
Vacancy  in  office  of  judge  does  not  affect  pend- 
ing proceedings:  See  post,  sec.  184. 

S  43.  There  shall  be  two  departments  of*  the 
Supreme  Court,  denominated  respectively  Depart- 
ment One  and  Department  Two.  The  Chief  Jus- 
tice shall  assign  three  of  the  Associate  Justices  to 
each  department,  and  such  assignment  may  be 
changed  by  him  from  time  to  time;  provided,  that 
the  Associate  Justices  shall  be  competent  to  sit 
in  either  department,  and  may  interchange  with 
one  another  by  agreement  among  themselves,  or  if 
no  such  agreement  be  made,  as  ordered  by  the 
Chief  Justice.  The  Chief  Justice  may  sit  in  either 
department,  and  shall  preside  when  so  sitting;  but 
tlie  justices  assigned  to  each  department  shall  se- 
lect one  of  their  number  as  presiding  justice. 
Each  of  the  departments  shall  have  the  power  to 
hear  and  determine  causes  and  all  questions  aris- 
ing therein,  subject  to  the  provisions  in  relation 
to  the  court  in  bank.  The  presence  of  three  jus- 
tices shall  be  necessary  to  transact  any  business 
in  either  of  the  departments,  except  such  as  may 
be  done  at  chambers;  but  one  or  more  of  the  jus- 
tices may  adjourn  from  time  to  time  with  the 
same  effect  as  if  all  were  present,  and  the  concur- 
rence of  three  justices  shall  be  necessary  to  pro- 
nounce a  judgment;  provided,  that  if  three  do  not 
concur,  the  cause  may  be  reheard  in  the  same  de- 
partment, or  transmitted  to  the  other  department, 
or  to  the  court  in  bank. 

Const.  Cal.  art.  G,  sec.  2. 

Chambers,  powers  at.    Sec.  105,  post. 

Adjournment,  holidays.    Sees,  134  and  135,  post. 

§  44.  The  Chief  Justice  shall  apportion  the  bus- 
iness to  tlie  departments,  and  may.  in  his  discre- 


48  SUPREME   COURT.  §  45 

tion,  order  any  cause  pending  before  the  court  to 
be  heard  and  decided  by  the  court  in  bank.  The 
order  may  be  made  before  or  after  judgment  pro- 
nounced by  a  department;  but  when  a  cause  has 
been  allotted  to  one  of  the  departments  and  a 
judgment  pronounced  therein,  the  order  must  be 
made  within  thirty  days  after  such  judgment,  and 
concurred  in  by  two  Associate  Justices;  and  if  so 
made,  it  shall  have  the  effect  to  vacate  and  set 
aside  the  judgment.  Any  four  justices  may,  either 
before  or  after  judgment  by  a  department,  order  a 
cause  to  be  heard  in  banlv.  If  the  order  be  not 
made  within  the  time  above  limited,  the  judgment 
shall  be  final;  provided  that  no  judgment  by  a  de- 
partment shall  become  final  until  the  expiration  of 
the  period  of  thirty  days  aforesaid,  unless  approv- 
ed by  the  Chief  Justice  in  writing,  with  the  con- 
currence of  two  Associate  Justices. 

Const.  Cal.,  art.  6,  sec.  2.  See  sec.  129;  Supreme 
Ct.  rule  30. 

§  45.  The  Chief  Justice  or  any  four  justices 
may  convene  the  court  in  bank  at  any  time,  and 
the  Cliief  Justice  shall  be  the  presiding  justice  of 
the  court  when  so  convened.  The  presence  of  four 
justices  shall  be  necessary  to  transact  any  busi- 
ness, and  the  concurrence  of  four  justices  present 
at  the  argument  shall  be  necessary  to  pronounce  a 
judgment  in  the  court  in  bank;  provided,  that  if 
four  justices  so  present  do  not  concur  in  a  judg- 
ment, then  all  the  justices  qualified  to  sit  in  the 
cause  shall  hear  the  argument,  but  to  render  a 
judgment  a  concurrence  of  four  justices  shall  be 
necessaiy;  and  every  judgment  of  the  court  in 
bank  shall  be  final,  except  in  cases  in  which 
no  previous  judgment  has  been  rendered  in  one 
of  the  departments,  and  in  such  cases  the  judg- 
ment of  the  court  in  bank  shall  be  final,  unless 


S§  4(5,  47  SUPREME  COURT.  44 

Avitliin  thirty  days  after  such  judgment  au  order 
be  made  in  writing,  signed  by  four  justices,  grant- 
ing a  rehearing. 
Const.  Cal.  art.  6,  sec.  2. 

§  46.  In  case  of  the  absence  of  the  Chief  Jus- 
tice from  the  place  at  which  the  court  in  bank  is 
held,  or  his  inability  to  act,  the  .Associate  Justices 
shall  select  one  of  their  own  number  to  perform 
the  duties  and  exercise  the  powers  of  the  Chief 
Justice  during  such  absence  or  inability  to  act. 

Const.  Cal.  art.  6,  sec.  2. 

§  47.  The  Supreme  Court  shall  always  be  open 
for  the  transaction  of  business.  It  shall  hold  reg- 
ular sessions  for  the  hearing  of  causes,  either  in 
bank,  or  in  one  or  both  of  its  departments,  at  the 
capital  of  the  State,  commencing  on  the  first  Mon- 
days of  May  and  second  Mondays  of  November; 
at  the  city  and  county  of  San  Francisco,  commenc- 
ing on  the  second  Mondays  of  .January  and  third 
Mondays  of  July;  and  at  the  city  of  Los  Angeles, 
commencing  on  the  first  Mondays  of  April  and  sec- 
ond jNIondays  of  October;  and  special  sessions  at 
either  of  the  above-named  places  at  such  other 
times  as  may  be  prescribed  by  the  justices  there- 
of. The  justices  and  otBcers  of  the  Supreme  Court, 
shall  be  allowed  their  actual  traveling  expenses 
in  going  to  and  from  their  respective  places  of  res- 
idence upon  the  business  of  the  court,  or  to  attend 
its  sessions.  If  proper  rooms  in  which  to  hold  the 
court,  and  for  the  accommodation  of  the  officers 
thereof,  are  not  provided  by  the  State,  together 
with  attendants,  furniture,  fuel,  lights,  and  sta- 
tionery, suitable  and  sufficient  for  the  transaction 
of  business,  the  court,  or  any  three  justices  there- 
of, may  direct  the  clerk  of  the  Supreme  Court  to 
l)rovi(l('    such    rooms,    attendants,    furniture,    fuel. 


45  SUPREME  COURT.  §§  48-50 

lights,  and  stationery;  and  the  expenses  thereof, 
certified  by  any  three  justices  to  be  correct,  shall 
be  paid  out  of  the  State  treasury,  for  which  ex- 
penses, and  to  defray  the  traveling  expenses  of  the 
justices  and  officers  of  the  Supreme  Court  above 
mentioned,  a  sufficient  sum  shall  be  annually  ap- 
propriated out  of  any  funds  in  the  State  treasury 
not  otherwise  appropriated.  The  moneys  so  ap- 
propriated shall  be  subject  to  the  order  of  the 
Clerk  of  the  Supreme  Court,  and  be  by  him  dis- 
bursed on  proper  vouchers,  and  the  same  shall  be 
accounted  for  by  him  in  annual  settlements  with 
the  Controller  of  State  on  the  first  Monday  of  De- 
cember of  each  year. 

Always  open.  Const.  Cal.  art.  6,  sec.  2,  and  sec. 
134,  post. 

§  48.  Adjournments  from  day  to  day,  or  from 
time  to  time,  are  to  be  construed  as  recesses  in  the 
sessions,  and  shall  not  prevent  the  court,  or  either 
of  its  departments,  from  sitting  at  any  time. 

Const.  Cal.  art.  6,  sec.  2. 

Terms  of  Court.  This  section,  with  section  74, 
post,  does  away  with  the  terms  of  courts,  and  ren- 
ders it  unnecessary  to  collate  the  decisions  upon 
questions  connected  with  that  subject.  See  also 
section  74,  post,  as  to  superior  courts,  and  sections 
88  and  104  as  to  justices'  courts. 

§  49.  In  the  determination  of  causes,  all  deci- 
sions of  the  Supreme  Court  in  bank,  or  in  depart- 
ments, shall  be  given  in  writing,  and  the  grounds 
of  the  decision  shall  be  stated. 

Const.  Cal.  art.  6,  sec.  2. 

§  50.    The  jurisdiction  of  the  Supreme  Court  is 
of  two  kinds: 
1.    Original;  and. 


§§  51,  52  SUPREME   COURT.  46 

2.    Appellate. 

See  siibseQuent  sections  of  this  chapter. 

§  51.  lu  the  exercise  of  its  original  jurisdiction 
tlie  Supreme  Court  shall  have  power  to  issue 
writs  of  mandamus,  certiorari,  prohibition,  and  ha- 
beas corpus;  and  it  shall  also  have  power  to  issue 
all  other  writs  necessary  and  proper  to  the  com- 
plete exercise  of  its  appellate  jurisdiction. 

Const.  Cal.  art.  6,  sec.  4. 

Mandamus.  Sees.  54,  76,  165,  1084  et  seq.,  1108 
to  1110. 

Certiorari.  Sees.  54,  76,  165,  1067  et  seq.,  1108  to 
1110. 

Prohibition.  Sees.  54,  76,  165,  1102  et  seq.,  1108 
to  1110. 

Habeas  Corpus.  Sees.  54,  76,  165;  generally, 
Pen.  Code,  sec.  1473,  et  seq. 

Injunction.  Sees.  54,  76,  165,  356,  525  et  seq., 
745,  1341. 

Procedendo.    Sec.  129,  Supreme  Ct.  rule. 

Writs,  certain,  abolished— scire  facias  and  quo 
warranto,  sec.  802  (but  as  to  latter,  see  sec.  76, 
subd.  5). 

Writ.  Defined,  sec.  17;  seal,  sec,  153;  issuance, 
sec.  54;  service  by  telegraph,  sec.  1017. 

Powers  of  single  justice  to  issue  writs:  See  post, 
sec.  54. 

Ne  exeat:  See  post,  sees.  478  et  seq. 

§  52.  The  Supreme  Court  shall  have  appellate 
jurisdiction: 

1.  In  all  cases  in  equity,  except  such  as  arise  in 
Justices'  Courts; 

2.  In  all  cases  at  law  which  involve  the  title 
or  possession  of  real  estate,  or  the  legality  of  any 
tax,  impost,  assessment,  toll  or  municipal,  fine,  or 
in  which  the  demand,  exclusive  of  interest,  or  the 


47  SUPREME  COURT.  §  53 

value  of  the  property  iu  controversy,  amounts  to 
three  hundred  dollars; 

3.  In  all  cases  of  forcible  entry  and  detainer, 
proceedings  in  insolvency,  actions  to  prevent  or 
abate  a  nuisance,  and  in  all  such  probate  matters 
as  may  be  provided  by  law; 

4.  In  all  special  proceedings; 

5.  In  all  criminal  cases  prosecuted  by  indict- 
ment or  information,  in  a  court  of  record,  on  ques- 
tions of  law  alone. 

Const.  Cal.  art.  (5,  sec.  4. 

Appeals  in  general.    Sec.  936  et  seq. 

Appeals  to  Supreme  Court.    Sec.  963  et  seq. 

Proceedings  in  insolvency:  See  sec.  1822;  and  the 
act  of  1895  iu  Appendix,  post,  p.  817. 

Nuisance:  See  post,  sec.  731. 

Probate  matters:  See  sec.  963,  subd.  3. 

Forcible  entry  and  detainer:  See  post,  sees.  1180 
et  seq. 

Mandamus,  etc.  The  supreme  court  has  appel- 
late jurisdiction  in  cases  of  mandamus  and  prohi- 
bition: See  post,  sec.  1063. 

Act  transferring  business,  records,  etc.,  of  court 
under  old  constitution.    vSee  post,  Appendix,  p.  865. 

§  53.  The  Supreme  Court  may  atfirm,  reverse, 
or  modify  any  judgment  or  order  appealed  from, 
and  may  direct  the  proper  judgment  or  order  to  be 
entered,  or  direct  a  new  trial  or  further  proceed- 
ings to  be  had.  The  decision  of  the  court  shall  be 
given  in  Avriting;  and  in  giving  its  decision,  if  a 
new  trial  be  granted,  the  court  shall  pass  upon  and 
determine  all  the  questions  of  law  involved  in  the 
case,  presented  upon  such  appeal,  and  necessary  to 
the  final  determination  of  the  case.  Its  judgment 
in  appealed  cases  shall  be  remitted  to  the  court 
from  which  the  appeal  was  taken. 

Death,   suggestion  of:  Sec.  385. 


?§  54,  53  SUPREME   COURT.  48 

Ejectment.  Termination  of  plaintiff's  right 
pending-  action:  Sec.  740. 

Marriage,  snggestion  of:  Sec.  385. 
Errors  and  defects  are  to  be  disregarded:  Sec.  475. 
Records,  though  not  conclnsive,  are  presumed  cor- 
rectlj'  to  determine  the  rights  of  the  parties:  Sec. 
li)G8,  subd.  17. 

As  to  costs  on  modification:  Sec.  1027. 

Remittitur:  Sec.  958. 

Repeated  applications  for  same  order,  etc.:  See 
sees.  182,  183. 

Res  adjudicata:  Sec.  1908. 

§  54.  The  concurrence  of  three  Justices  of  the 
Supreme  Court  is  necessary  for  the  issuance  of 
tiuy  writ,  or  the  transaction  of  any  business,  ex- 
cept such  as  can  be  done  at  chambers;  provided, 
that  each  of  the  justices  shall  have  power  to  issue 
writs  of  habeas  corpus  to  any  part  of  the  State 
upon  petition  by  or  on  behalf  of  any  person  held 
in  actual  custody,  and  may  mal^e  such  writs  re- 
tin-nable  before  liimself  or  the  Supreme  Court,  or 
any  department,  or  judge  thereof,  or  before  any 
Superior  Court  in  the  State  or  any  judge  thereof. 

See  Const.  Cal.,  art.  G,  sec.  4. 

Business  at  chambers— sec.  165. 

Habeas  Corpus.— See  U.  S.  Const.,  art.  8,  Amdts., 
and  Const.  Cal.,  art.  2,  sees.  5.  6. 

Generally— Penal  Code,  sec.  1473  et  seq.,  see. 
1492  et  seq.,  1268,  et  seq. 

§  55.  All  records,  books,  papers,  causes,  actions, 
proceedings,  and  appeals  lodged,  deposited,  or 
IKMiding  in  the  Supreme  Court  abolislied  by  the 
constitution,  are  transferred  to  the  Supreme  Court 
lierein  provided  for,  which  lias  the  same  power 
and  jurisdiction  over  them  as  if  they  had  been 
ill   tlie   first    instance   lodged,    deposited,    filed,    or 


-10  SUPREME   COURT.  §§  53.  57 

coiiimeiiced   tlieivin.    or,    in   cases   of   appeal,    ap- 
I)ealed  thereto. 
Const.  Cal..  art.  22,  sec.  8. 

§  56.  In  all  cases  of  appeal  transferred  to  the 
Supreme  Court,  its  judtiinents  shall  be  remitted 
to  the  Sui)erior  Courts  of  the  counties,  or  cities 
and  counties,  from  which  the  appeals  were  taken 
res]iectiyely,  with  the  same  force  and  effect  as  if 
said  cases  had  been  appealed  to  the  Supreme 
Court  from  such  Superior  Courts. 

Transfer  of  records.— As  to  transfer  of  records, 
books,  papers,  and  business  from  old  court  to 
new,  see  appendix,  p.  805;  also  post,  sec.  79. 

§  57.  Appeals  in  probate  proceedings  shall  be 
.uiven  ])reference  in  hearing  in  the  Supreme  Court, 
and  be  placed  on  the  calendar  in  the  order  of  their 
(late  of  issue,  next  after  cases  in  which  the  peo- 
ple of  the  State  are  parties.  [New  section  ap- 
proved March   1(>.   1S87:   Stats.   1887,  p.  82.] 

Code   Civ.   Proc— 5 


S  65  SUPERIOR   COURTS.  50 

CHAPTER  IV. 

SUPERIOR   COURTS. 

§  65.  Judges  and  elections. 

§  66.  Superior  Courts  of  two  or  more  judges. 

§  67.  Superior  Court  of  the  City  and  County  of  San  Fran- 
cisco. 

§  68.  Terms  of  office. 

§  69.  Computation   of   years    of   office. 

§  70.  Vacancies. 

§  71.  Superior  Courts  by  judges  of  other  counties. 

§  72.  Judges  pro   tempore. 

§  73.  Sessions. 

§  74.  Adjournments. 

§  75.  Jurisdiction   of  two   kinds. 

§  76.  Original    jurisdiction. 

§  77.  Appellate   jurisdiction. 

§  78.  Process. 

§  79.  Transfer  of  books,   papers,    and  actions. 

§  65.  There  shall  be  in  each  of  the  organized 
counties,  or  cities  and  counties  of  the  State,  a 
Superior  Court,  for  each  of  which  one  judge,  and 
for  some  of  which  two  or  more  judges,  as  herein- 
after in  subsequent  sections  specially  provided, 
shall  be  elected  by  the  qualified  electors  of  the 
county,  or  city  and  county,  at  the  general  State 
elections  next  preceding  the  expiration  of  the 
terms  of  office  of  their  predecessors  respectively; 
provided,  that  in  and  for  the  counties  of  Yuba  and 
Sutter  combined,  only  one  Superior  Judge  shall 
be  elected,  who  shall  hold  the  Superior  Courts  of 
both  said  counties,  and  in  accordance  with  such 
rules  for  the  dispatch  of  business  in  both  said 
counties  as  he  may  adopt. 

(.'oust.  CaL,  art.  G,  sec.  G. 

.Jurisdiction  of  Superior  Courts:  See  post,  sees. 
75-78. 

Acts  increasing  and  reducing  number  of  judges 
in  various  counties:  See  post.  Appendix,  pp.  801, 
et  seq. 


51  SUPERIOR  COURTS.  §§  66-68 

§  66.  In  each  of  the  counties  of  Alameda,  Los 
Angeles,  Sacramento,  San  Joaquin,  Santa  Clara, 
and  Sonoma,  there  shall  be  elected  two  judges  of 
the  Superior  Court;  and  in  each  of  said  counties, 
and  in  any  county,  or  city  and  county,  other  than 
the  city  and  county  of  San  Francisco,  in  which 
there  shall  be  more  than  one  judge  of  the  Supe- 
rior Court,  the  judges  of  such  court  may  hold 
as  many  sessions  of  said  court  at  the  same  time 
as  there  are  judges  thereof,  and  shall  apportion 
the  business  among  themselves  as  equally  as  may 
be. 

Const.  Cal..  art.  G,  sees.  6,  7. 

Acts  increasing  and  reducing  number  of  judges 
in  various  counties:  See  post.  Appendix,  pp.  801, 
et  seq. 

§  67.  In  the  city  and  county  of  San  Francisco 
there  shall  be  elected  twelve  judges  of  the  Su- 
perior Court,  any  one  or  more  of  whom  may  hold 
court;  and  there  may  be  as  many  sessions  of  said 
court  at  the  same  time  as  there  are  judges  thereof. 
The  said  judges  shall  choose  from  their  own  num- 
ber a  presiding  judge,  who  may  at  any  time  be 
removed  and  another  chosen  in  his  place,  by  a 
vote  of  any  seven  of  them.  The  presiding  judge 
shall  distribute  the  business  of  the  court  among 
the  judges  thereof,  and  prescribe  the  order  of  bus- 
iness. The  judgments,  orders,  and  proceedings  of 
any  session  of  the  Superior  Court,  held  by  any  one 
or  more  of  the  judges  of  said  court,  shall  be  equal- 
ly effective  as  if  all  the  judges  of  said  court  pre- 
sided at  such  session. 

Const.  Cal.,  art.  6,  sec.  6. 

Process—sec.  78. 

Act  allowing  superior  judges  of  San  Francisco 
to  appoint  secretary:  See  post.  Appendix,  p.  800. 

§  68.    The  term  of  office  of  judges  of  the  Su- 


SS  69.  70  SUPERIOR    COURTS.  52 

pei'ior  Court  nIuiII  be  six  years  from  and  after  the 
first  Monday  of  January  next  succeeding  their 
election;  provided,  that  the  tAvelve  judges  of  the 
Suiierior  Court  elected  in  the  city  and  county  of 
San  Francisco  at  the  general  State  election  of 
eighteen  hundred  and  seventy-nine  shall  have  so 
<;lassified.  or  shall  so  classify  themselves,  by  lot, 
that  four  of  them  shall  go  out  of  ottice  at  the  end 
of  one  year,  four  of  them  at  the  end  of  three 
years,  and  four  of  them  at  the  end  of  five  years 
from  the  first  Monday  of  January,  eighteen  hun- 
dred and  eighty;  and  the  entry  of  such  classifica- 
tion shall  have  been,  or  shall  be,  made  in  the 
minutes  of  the  court,  signed  by  them,  and  a  dupli- 
cate thereof  filed  in  the  office  of  the  secretary  of 
State;  and  provided  further,  that  all  the  other  su- 
perior Judges  elected  at  the  general  State  election 
of  eighteen  hundred  and  seventy-nine  shall  go  out 
of  office  at  the  end  of  five  years  from  the  first 
Monday  of  January,  eighteen  hundred  and  eighty. 

'  Const.  Cal.,  art.  0,  sec.  6. 

§  69.  'i'he  years  during  which  a  judge  of  a  Su- 
perior Court  is  to  hold  ofiice  are  to  be  computed 
respectively  from  and  includiug  the  first  Monday 
of  January  of  any  one  year  to  and  excluding  the 
first  Monday  of  January  of  the  next  succeeding 
year. 

Const.  Cal.,  art.  G,  sec.  G.     See  sec.  41,  ante. 

§  70.  If  a  vacancy  occur  in  the  office  of  judge 
of  a  Superior  Coiu't,  the  governor  shall  appoint  an 
eligible  i)ersou  to  hold  the  office  until  the  election 
and  qualification  of  a  judge  to  fill  the  vacancy, 
■which  election  shall  take  place  at  the  next  suc- 
ceeding general  election,  and  the  judge  so  elected 
shall  hold  office  for  the  remainder  of  the  unexpired 
term. 

Const.  Cal..  art.  G.  sec.  (;.     Sec  sec.  42,  ante. 


53  SUPERIOR   COURTS.  §§  71-73 

N'acaiicies  in  office,  and  the  mode  of  siippljriiig 
iliem:  See  Polit.  Code,  sees.  D95  et  seq. 

Vacancy  does  not  affect  pending  proceedings: 
See  post,  sec.  184. 

§  71.  A  judge  of  any  Superior  Coint  may  liold 
tlie  Superior  Court  in  any  county,  at  the  request 
of  tlie  judge  or  judges  of  the  Superior  Court  there- 
of, and  upon  tlie  request  of  tlie  governor,  it  shall 
be  his  duty  to  do  so;  and  in  either  case  the  ju<1ge 
holding  the  court  shall  have  the  same  power  as  a 
judge  thereof. 

Const.  Cal.,  art.  0,  sec.  8.    See  post,  sec.  160. 

§  72.  Any  cause  in  a  Superior  Court  may  be 
tried  by  a  judge  pro  tempore,  who  must  be  a  mem- 
ber of  the  bar  admitted  to  practice  before  the  Su- 
preme Court,  agreed  upon  in  writing  by  the  par- 
ties litigant,  or  their  attorneys  of  record,  ap- 
proved by  the  court,  and  sworn  to  try  the  cause: 
and  his  action  in  the  trial  of  such  cause  shall  have 
the  same  effect  as  if  he  Avere  a  judge  of  such 
court.  A  judge  pro  tempore  shall,  before  entering 
upon  his  duties  in  any  cause,  tal^e  and  suljscribe 
the  following  oath  or  affirmation:  '"I  do  solemnly 
swear  (or  affirm,  as  the  case  may  be)  that  I  Avill 
support  the  constitution  of  the  United  States  and 
the  constitution  of  the  State  of  California,  and 
that  I  will  faithfully  discharge  the  duties  of  the 
office  of  judge  pro  tempore  in  the  cause  wherein 
is  plaintiff,  and  is  defendant,  accord- 
ing to  the  best  of  my  ability." 

Const.  Cal.,  art.  G,  sec.  8. 

Must  be  admitted  lief  ore  Supreme  Court:  S(»e 
post,   sec.   157. 

§  73.  Tlie  Superior  Courts  shall  be  always 
(ipcn     (legal  holidays   nnd     nonjudicial     days   ex- 


|§  74-7o  SUPERIOR  COURTS.  54 

cepted)  caiid  they  shall  hold  their  sessions  at  the 
conntj^  seats  of  the  several  counties,  or  cities  and 
counties,  respectively.  They  shall  hold  regular 
sessions,  commencing  on  the  first  Mondays  of 
January,  April,  July,  and  October,  and  special  ses- 
sions at  such  other  times  as  may  be  prescribed 
by  the  judge  or  judges  thereof;  provided,  that  in 
the  city  and  county  of  San  Francisco  the  presiding 
judge  shall  prescribe  the  times  of  holding  such 
special  sessions. 

See  Const.  Cal.,  art.  G,  sec.  5. 

Ahvays  open— see  same. 

Holidays,  etc.— See  ante,  sec.  10,  post;  sees.  334, 
135. 

Adjournments  from  time  to  time  mere  recesses 
in  the  sessions:  See  sec.  74,  infra;  see,  also,  sec. 
48,  ante. 

§  74,  Adjournments  from  day  to  day,  or  from 
tinic  to  time,  are  to  be  construed  as  recesses  in 
the  sessions,  and  shall  not  prevent  the  court  from 
sitting  at  any  time. 

See  sec.  48,  and  sec.  104. 

§  75.  The  jurisdiction  of  the  Superior  Courts  is 
of  two  kinds: 

1.  Original;  and, 

2.  Appellate. 

See  sees.  33.  and  50. 

§  76.  The  Superior  Courts  shall  have  original 
jurisdiction: 

1.  In  all  cases  in  equity; 

2.  In  all  civil  actions  in  which  the  subject  «f 
litigation  is  not  capable  of  pecuniary  estimation; 

3.  In  all  cases  at  law  which  involve  the  title  or 
possession  of  real  pro])erty,  or  the  legality  of  any 
tax,    impost,   assessment,   toll,   or   municipal   fine. 


55  SUPERIOR   COURTS.  2^7,78 

and  iu  all  other  cases  in  which  the  demand,  exclu- 
sive of  interest  or  the  value  of  the  property  in 
controversy,  amounts  to  three  hundred  dollars; 

4.  Of  actions  of  forcible  entry  and  detainer,  of 
])roceedings  in  insolvency,  of  actions  to  prevent  or 
abate  a  nuisance,  of  all  matters  of  probate,  of  di- 
vorce, and  for  annulment  of  marriage,  and  of  all 
such  special  cases  and  proceedings  as  are  not 
otlierwise  provided  for; 

.1.  In  all  criminal  cases  amounting  to  felony, 
and  oases  of  misdemeanor  not  otherwise  provided 
for.  Said  courts  shall  have  the  power  of  naturali- 
zation, and  to  issue  papers  therefor.  Said  courts 
and  their  judges,  or  any  of  them,  shall  have  power 
to  issue  writs  of  mandamus,  certiorari,  prohibition, 
quo  warranto,  and  of  habeas  corpus  on  petition  by 
or  on  behalf  of  any  person  in  actual  custody,  in 
their  respective  counties.  Injunctions  and  writs 
of  prohibition  may  be  issued  and  served  on  legal 
holidays  and  nonjudicial  days. 

Const.  Cal.,  art.  6,  sec.  5. 

Venue  of  actions:  Sec.  392,  post. 

Nuisance:  Sees.  57,  731. 

Insolvency:  See  sec.  1822,  and  the  act  of  1895  in 
Appendix,  p.  817. 

Act  conferring  upon  Superior  Judges  powers  of 
probate,  district  and  county  judges:  See  post,  Ap- 
pendix, p.  799. 

§  77.  The  Superior  Courts  shall  have  appellate 
jurisdiction  in  such  cases  arising  in  justices'  and 
other  inferior  courts  in  their  respective  counties 
as  may  be  prescribed  by  law. 

Const.   Cal.,   art.  G,   sec.  5. 

Appeals  to  Superior  Courts:  See  post,  sees.  974- 
980. 

§  78.  The  process  of  the  Superior  Courts  shall 
extend  to  all  parts  of  the  State;  provided,  that  all 


§  79  SUPERIOR   COURTS.  56 

nctions  for  tbo  recovery  of  the  possession  of,  quiet- 
ing tlie  title  to,  or  for  tlie  enforcement  of  liens 
upon  real  estate,  shall  be  commenced  in  the  coun- 
ty in  Avhich  the  real  estate,  or  any  part  thereof  af- 
fected by  such  action  or  actions,  is  situated. 

Const.  Cal.,  art.  G,   sec.  o. 

I{eal  property— Commencinji-  action;  as  to  place 
of  trial,   see  sees.  392,  396. 

§  79.  All  records,  boolvS,  papers,  causes,  actions, 
proceed inus,  and  appeals  lodged,  deposited,  or 
pending-  in  the  District  Court  or  Courts,  County 
Court,  Probate  Court,  Municipal  Criminal  Court, 
or  Municipal  Court  of  Appeals,  of,  in,  or  for  any 
county,  or  vAty  and  county,  of  the  State,  abolished 
by  the  constitution,  are  transferred  to  the  Su- 
perior Court  of  such  county,  or  city  and  county, 
AA'liich  has  the  same  power  and  jurisdiction  over 
tliem  as  if  they  had  been  in  the  tirst  instance 
lodged,  deposited,  filed,  or  commenced  therein,  or, 
in  cases  of  appeal,  appealed  thereto. 

Const.  Cal.,  art.  22.  sec.  3. 

I'ransfer  of  boolvS,  papers,  and  actions:  See  ante, 
sec.  55;  see  sec.  7G,  ante. 

Act  conferring-  upon  Superior  Court,  powers  of 
district,  county,  and  probate  courts:  See  post.  Ap- 
pendix, p.  799. 

Act  transferring-  to  Superior  Court  business,  rec- 
ords, etc.,  of  courts  in  existence  under  old  con- 
stitution: See  post.  Appendix,  p.  799. 


r>7  JUSTICES'    COURTS.  §  83 

CHAPTEK  Y. 

JUSTICES'  COURTS. 

Article  I.     Of  Justices'   Courts  in  Cities  and  Counties. 
II.     Of  Justices'  Courts   in   Townships. 
III.    Justices    of   the    Peace   and   Justices'    Courts    it. 
General. 

ARTICLE  I. 

JUSTICES'    COURTS   IN   CITIES   AND    COUNTIES. 

§  85.  Justices'  Court  and  justices. 

§  86.  Justices'  Clerk. 

§  87.  Sheriff  and  deputies. 

§  88.  Offices  and  office  hours. 

§  89.  Actions. 

§  90.  Reassignment  and   transfer  of  actions. 

§  91.  Payment   of    fees. 

§  92.  Certificates,    transcripts,  and   others   papers. 

§  93.  Justices'    docket. 

§  94.  Territorial    extent   of   jurisdiction. 

§  95.  Practice  and  rules. 

§  93.  Attorneys. 

§  97.  Salaries. 

§  98.  What  justices  successors  of  others. 

S  85.  There  shall  be  in  every  city  and  county 
<>f  more  than  one  hundred  thousand  popukition  a 
jiistices"  court,  for  which  five  justices  of  the  peace 
slinll  be  elected  by  the  qualitied  electors  of  such 
<ity  and  county,  at  the  general  State  election  uext 
lu-ecedinj4-  the  expiration  of  the  terms  of  office  of 
tlieir  predecessors.  Any  one  of  said  justices  may 
hold  court,  and  there  may  be  as  many  sessions  of 
said  court  at  the  same  time  as  there  are  justices? 
thcieof.  The  said  justices  shall  choose  one  of 
tiicir  number  to  be  presiding  justice,  who  may  at 
any  time  be  removed  and  another  appointed  in  his 
place  by  a  vote  of  a  majority  of  them;  i)rovided, 
tliat  in  case  of  the  1em])orary  absence  or  disability 


§  86  JUSTICES'    COURTS.  58 

of  the  presiding  justice,  any  one  of  the  other  jus- 
tices, to  be  designated  by  the  presiding  justice, 
may  act  as  presiding  justice  during  such  absence 
or  disability. 

Const.  Cal.,  art.  6,  sec.  11. 

Compare  throughout  this  article,  Consolidation 
Act,  containing  act  of  March  2Gth,  1866,  organ- 
izing San  Francisco  Justices'  Court,  with  amend- 
ments thereto. 

Justices'  courts.— Elections  of  justices,  compare 
sees.  103,  110. 

Act  providing  that  mayor  of  certain  cities  shall 
not  act  as  justice:  See  post.  Appendix,  p.  798. 

§  86.  The  supervisors  of  such  city  and  county 
shall  appoint  a  justice's  clerk,  on  the  written  nom- 
ination and  recommendation  of  said  justices,  or  a 
majority  of  them,  who  shall  hold  office  for  two 
years,  and  until  his  successor  is  in  lilvc  manner 
appointed  and  qualified.  Said  justices'  clerlv  shall 
take  the  constitutional  oath  of  office,  and  give 
bond  in  the  sum  of  ten  thousand  dollars  for  the 
faithful  discharge  of  the  duties  of  his  office,  and 
in  the  same  manner  as  is  or  may  be  required  of 
other  officers  of  such  city  and  county.  A  new  or 
additional  bond  may  be  required  by  the  super- 
visors of  such  city  and  county,  and  in  such 
amount  as  may  be  fixed  by  said  supervisors, 
Avhenever  they  may  deem  it  necessary.  The  jus- 
tices' clerk  shall  have  authority  to  appoint  two 
deputy  clerks,  for  whose  acts  he  shall  be  respon- 
sible on  his  official  bond,  the  said  deputy  clerks 
to  hold  office  during  the  pleasure  of  said  clerk. 
Said  justices'  clerk  and  deputy  shall  have  autlior- 
ity  to  administer  oaths,  and  talce  and  certify  affi- 
davits in  any  action,  suit,  or  proceeding  in  said 
justices'  court. 

Clerks  generally:  See  sec.  262. 


59  JUSTICES'  COURTS.  §§  87,  88 

§  87.  The  sheriff  of  such  city  and  county  shall 
be  ex  officio  an  officer  of  said  court,  and  it  shall  be 
his  duty  to  serve  or  execute,  or  cause  to  be  served 
and  executed,  each  and  every  process,  writ,  or  or- 
der that  may  be  issued  by  said  justices'  court;  pro- 
^'ided,  that  a  summons  issued  from  said  court  may 
be  served  and  returned  as  provided  in  section 
eight  hundred  and  forty-nine  of  this  Code;  and 
that  subpoenas  may  be  issued  by  the  justices' 
clerk,  and  served  as  provided  in  section  one  thou- 
sand nine  hundred  and  eighty-seven  and  one  thou- 
sand nine  hundred  and  eighty-eight  of  this  Code. 
The  said  sheriff  may  appoint,  in  addition  to  the 
other  deputies  allowed  by  law,  three  deputies, 
whose  duty  it  shall  be  to  assist  said  sheriff  in 
serving  and  executing  the  process,  writs,  and  or- 
ders of  the  said  justices'  court.  Said  deputies  shall 
receive  a  salary  of  one  hundred  and  twenty -five 
dollars  per  month  each,  payable  monthly  out  of 
the  city  and  county  treasury,  and  out  of  the  spec- 
ial fee  fund,  after  being  first  allowed  and  audited 
as  other  demands  are  by  law  required  to  be  audit- 
ed and  allowed.  One  of  said  deputies  shall  re- 
main in  attendance  during  the  sessions  of  said 
court,  and  at  such  .other  times  as  the  said  court 
or  the  presiding  justice  thereof  may  order  and  di- 
rect, for  the  purpose  of  attending  to  such  duties 
as  may  be  imposed  on  said  sheriff  or  said  depu- 
ties, as  herein  provided,  or  required  by  law.  The 
said  sheriff  shall  be  liable  on  his  official  bond  for 
the  faithful  performance  of  all  duties  required 
of  him  or  any  of  his  said  deputies. 

Sheriff  generally:  See  sec.  262. 

§  88.  The  supervisors  of  such  city  and  county 
shall  provide,  in  some  convenient  locality  in  the 
city  and  county,  a  suitable  office  or  suite  of  offices 
for  said  presiding  justice,  justices'  clerk,  deputy 


§  89  .JUSTICES'    COURTS.  60^ 

clerk,  and  deputy  sheriff,  and  offices  suitable  for 
holding-  sessions  of  said  court,  and  separate  from 
one  another,  for  each  of  said  justices  of  the  peace, 
together  with  attendants,  furniture,  fuel,  lights, 
and  stationery  sufficient  for  the  transaction  of 
business;  and  if  they  are  not  provided,  the  court 
njay  direct  the  sheriff  to  provide  the  same,  and  the 
expenses  incurred,  certitied  by  the  justices  to  be 
correct,  shall  be  a  charge  against  the  city  and 
county  treasury,  and  paid  out  of  the  general  fund 
thereof.  The  said  justices,  justices'  clerk,  and 
deputy  clerk  shall  be  in  attendance  at  their  re- 
spective offices,  for  the  dispatch  of  official  busi- 
ness daily,  from  the  hour  of  eight  o'clock  a.  m. 
until  five  o'clock  p.  m, 

S  89.  All  actions,  suits,  and  proceedings  in  such 
city  and  county  Avhereof  justices  of  the  peace  or 
justices'  courts  have  jurisdiction,  except  those 
cases  of  concurrent  jurisdiction  that  may  be  com- 
laeuced  in  some  other  court,  shall  be  entitled,  "In 

the  Justices"  Court  of  the  City  and  County  of " 

(inserting  the  name  of  the  city  and  county)  and 
commenced  and  prosecuted  in  said  justices'  court, 
which  sliall  be  always  open.  ^  The  original  process 
sliall  l>e  returnable,  and  the  parties  summoned 
re(iuircd  to  ai)i)ear  before  the  presiding  justice,  or 
before  one  of  the  other  justices  of  the  peace,  to  bi' 
designated  by  the  presiding  justice,  at  his  office: 
l)ut  all  complaints,  answers,  and  other  pleadings 
and  papers  required  to  be  filed,  shall  be  filed,  and 
a  record  of  all  such  actions,  suits,  and  proceed- 
ings made  and  kept  in  the  clerk's  office  aforesaid: 
and  the  i>r(^siding  justice  and  each  of  the  other 
justices  shall  have  power,  jurisdiction,  and  author- 
ity to  hear,  try.  and  determine  any  a'-tion,  suit,  or 
l)roceeding  so  commenced,  and  which  shall  have 
been  made  returnable  Ix'fore  liiiii.  or  may  he  as- 
signed or  transfei-red  to  liiiu.  or  any  motion,  appli- 


61  JUSTICES'    COURTS.  §  90 

cation,  or  issue  therein  (subject  to  the  constitu- 
tional right  of  trial  by  .iury).  and  to  make  any  nec- 
essary and  pro])er  orders  therein. 

Concurrent  jurisdiction:  See  sec.  113,  post. 

•Turisdiction  of  justices'  court:  See  post,  sees. 
112  et  seq. 

§  90.  In  case  of  sickness  or  disability  or  ab- 
sence of  a  justice  of  the  peace  (on  the  return  of  a 
summons  or  at  the  time  appointed  for  trial)  to 
Avhom  a  cause  has  been  assigned,  the  presiding: 
justice  shall  reassign  the  cause  to  some  other  jus- 
tice, Avho  shall  proceed  Avith  the  trial  and  dispo- 
sition of  said  cause  in  the  same  manner  as  if  orig- 
inally assigned  to  him;  and  if,  at  any  time  before 
the  trial  of  a  cause  or  matter  returnable  or  pend- 
ing before  any  of  said  justices,  either  party  shall 
object  to  having  the  cause  or  matter  tried  before 
such  justice,  on  the  ground  that  such  justice  is  a 
material  witness  for  either  party,  or  on  the 
grotind  of  the  interest,  prejtidice.  or  bias  of  such 
justice,  and  such  objection  be  made  to  appear  in 
the  manner  prescribed  by  section  eight  hundred 
and  tliirty-tln-ee  of  this  Code,  the  said  justice  shall 
suspend  proceedings,  and  the  presiding  justice,  on 
motion  and  production  before  him  of  the  affidavit 
and  proofs,  shall  order  the  transfer  of  the  cause 
or  matter  for  trial  before  some  other  justice,  to  be 
designated  by  him.  The  presiding  justice  ma5^ 
in  like  manner,  assign  or  transfer  any  contested 
motion,  application,  or  issue  in  law,  arising  in  any 
cause  returnable  or  pending  before  him  or  any 
other  justice,  to  some  other  justice;  and  the  said 
justice,  to  whom  any  cause,  matter,  motion,  appli- 
cation, or  issue  shall  be  so  as  aforesaid  assigned 
or  transferred,  shall  have  power,  jurisdiction,  and 
autliority  to  hear,  try.  and  determine  the  same  ac- 
cordingly. 

Code  Civ.  Proc— 6 


§§91,92  JUSTICES"  COURTS.  62 

§  91.  All  legal  process  of  every  kind  in  actions, 
suits  or  proceedings  in  said  justices'  court,  for  the 
issue  or  service  of  which  any  fee  is  or  may  be  al- 
lowed by  law,  shall  be  issued  hj  the  said  justices' 
clerk  upon  the  order  of  the  presiding  justice,  or 
upon  the  order  of  one  of  the  justices  of  the  peace, 
acting  as  presiding  justice,  as  in  this  article  pro- 
vided; and  the  fees  for  issuance  and  service  of  all 
such  process,  and  all  other  fees  which  are  allowed 
by  law  for  any  ofiicial  services  of  justices,  jus- 
tices' clerks,  or  sheriff,  shall  be  exacted  and  paid 
in  advance  into  the  hands  of  said  clerk,  and  be  by 
him  daily,  or  weekly,  or  monthly,  as  the  super- 
visors may  require,  and  before  his  salary  shall 
be  allowed,  accounted  for  in  detail,  under  oath, 
and  paid  into  the  treasury  of  such  city  and  coun- 
ty as  part  of  the  special  fee  fund  thereof;  pro- 
vided, that  such  payment  in  advance  shall  not  be 
exacted  from  parties  who  may  prove  to  the  satis- 
faction of  the  presiding  justice  that  they  have  a 
good  cause  of  action,  and  that  they  are  not  of 
sufficient  pecuniary  ability  to  pay  the  legal  fees; 
and  no  judgment  shall  be  rendered  in  any  action 
before  said  justices'  court,  or  any  of  said  justices, 
until  the  fees  allowed  therefor,  and  all  fees  for 
previous  services  therein,  which  are  destined  to 
be  paid  into  the  treasury,  shall  have  been  paid, 
except  in  cases  of  poor  persons,  as  hereinbefore 
provided. 
Const.  Cal.,  art.  G,  sec.  15. 

§  92.  Cases  which  by  the  provisions  of  law  are 
required  to  be  certified  ta  the  Superior  Court,  by 
reason  of  involving  the  question  of  title  or  pos- 
session of  real  property,  or  the  legality  of  any  tax, 
impost,  assessment,  toll,  or  municipal  tine,  shall 
be  so  certified  by  the  presiding  justice  and  jus- 
tices' clerk ;  and  for  that  purpose,  If  such  question 


C3  JUSTICES'    COURTS.  §  93 

shall  arise  on  the  trial,  while  the  case  is  pendius? 
before  oue  of  the  other  justices,  such  justice  shall 
certify  the  same  to  the  presiding  justice.  All  ab- 
stracts and  transcripts  of  judgments  and  proceed- 
ings in  said  court,  or  in  any  of  the  dockets  or  reg- 
isters of  or  deposited  in  said  court,  shall  be  given 
and  certified  from  any  of  such  dockets  or  registers, 
and  signed  by  the  presiding  justice  and  clerk,  and 
shall  have*  the  same  force  and  effect  as  abstracts 
and  trnnscripts  of  justices  of  the  peace  in  other 
cases.  Appeals  from  judgments  rendered  in  said 
court  shall  be  taken  and  perfected  in  the  man- 
ner prescribed  by  law;  but  the  notice  of  appeal, 
and  all  the  papers  required  to  be  filed  to  perfect  it, 
shall  be  filed  with  the  justices'  clerk.  Statements 
on  appeal  shall  be  settled  by  the  justice  who  tried 
the  cause.  Sureties  on  appeal,  or  on  any  bond,  or 
undertaking  given  in  any  cause  or  proceeding  in 
said  court,  when  required  to  justify,  may  justify 
before  anj^  one  of  the  justices. 

Transfer— to  Superior  Court,  see  sec.  838. 

Appeals:  See  sec.  974,  et  seq. 

§  93.  In  a  suitable  book,  strongly  bound,  the 
justices'  clerk  shall  keep  a  permanent  record  of  all 
actions,  proceedings,  and  judgments  commenced, 
had,  or  rendered  in  said  justices'  court,  which 
book  shall  be  a  public  record,  and  be  known  as  the 
"Justices'  Docket,"  in  which  docket  the  clerk  shall 
make  the  same  entries  as  are  provided  for  in  sec- 
tion nine  hundred  and  eleven  of  this  Code,  and 
which  said  docket  and  entries  therein  shall  have 
the  same  force  and  effect  as  is  provided  by  law  in 
reference  to  dockets  of  justices  of  the  peace.  To 
enable  the  clerk  to  make  up  such  docket,  each  of 
the  justices  shall  keep  minutes  of  his  proceedings 
in  every  cause  returnable  before  or  assigned  or 
transferred  to  him  for  trial  or  hearing;  and  upon 


§§  91-96  JUSTICES'  COURTS.  64 

jiul.ijcment  or  other  disposition  of  a  cause,  such 
jrstice  shall  immediately  certify  and  return  the 
said  minutes,  together  with  all  pleadings  and  pa- 
pers in  said  cause,  to  the  clerk's  office,  who  shall 
immediately  thereupon  file  the  same  and  make  the 
proper  entries  under  the  title  of  the  action  in  the 
docket  aforesaid. 

Docket  generally:  Sec.  911  et  seq.;  effect  of,  sec. 
912. 

§  94.  The  jurisdiction  of  the  justices'  court  of 
sucli  city  and  county  extends  to  the  limits  of  the 
city  and  county,  and  its  process  may  be  served  in 
any  part  thereof. 

Jurisdiction:  Sees.  112  et  seq.;  925,  post. 

§  95.  The  justices'  court  and  the  justices  of  the 
peace  of  every  such  city  and  county  shall  be  gov- 
erned in  their  proceedings  by  the  provisions  of 
lav>'  regulating  proceedings  before  justices  of  the 
peace,  so  far  as  such  provisions  are  not  altered  or 
modified  in  this  article,  and  the  same  are  or  can 
be  made  applicable  in  the  several  cases  arising 
before  them.  The  justices'  courts  of  such  city 
and  county  shall  have  power  to  make  rules  not 
inconsistent  with  the  constitution  and  laws  for 
the  government  of  such  justices'  court  and  the  of- 
ficers thereof;  but  such  rules  shall  not  be  in  force 
until  thirty  days  after  their  publication;  and  no 
rules  shall  be  made  imposing  any  tax  or  charge 
on  any  legal  proceeding,  or  giving  any  allowance 
to  any  justice  or  otficer  for  services. 

Provisions  applicable:  See  post,  sees.  832-925. 

1  Jules  of  courts  generally:  See  post,  sec.  129. 

§  96.  It  shall  not  be  lawful  for  any  justice  of 
the  peace,  justices'  clerlv,  or  sheriff  of  any  such 


1.5  JUSTICES'   COURTS.  §  97 

city  and  county,  or  any  of  their  deputies,  to  ap- 
pear or  advocate,  or  in  any  manner  act  as  attor- 
ney, counsel,  or  agent  for  any  party  or  person  in 
any  cause,  or  in  relation  to  any  demand,  account, 
or  claim  pending,  or  to  be  sued  or  prosecuted  be- 
fore said  court  or  justices,  or  either  of  them;  nor 
shall  any  person  other  than  an  attorney  at  law, 
duly  admitted  to  practice  in  courts  of  record,  be 
permitted  to  appear  as  attorney  or  agent  for  any 
party  in  any  cause  or  proceeding  before  said  jus- 
tice's court,  or  any  of  said  justices,  unless  he  pro- 
duce a  sufficient  power  of  attorney  to  that  effect, 
duly  executed  and  aclinowledged  before  some  of- 
ficer authorized  by  law  to  talie  acknowledgments 
of  deeds,  which  power  of  attorney,  or  a  copy 
thereof,  duly  certified  by  one  of  the  justices  (who 
on  inspection  of  the  original,  and  being  satisfied 
of  its  genuineness,  shall  certify  such  copy),  shall 
be  filed  among  the  papers  in  such  cause  or  pro- 
ceeding. 

Justice  of  the  peace,  eligibility:  Sec.  159. 

Judicial  officers,  disqualifications:  Sees.  170,  171, 
172. 

Ministerial  oflicers  generally:  Sec.  262. 

Attorneys:  Sec.  275  et  seq. 

Eligibility  and  residence  of  justice  of  peace: 
Sees.  103,  159,  post. 

§  97.  The  justices  of  the  peace,  and  justices' 
clerk,  and  his  deputy,  shall  receive  for  their  official 
services  the  following  salaries,  and  no  other  or 
further  compensation,  payable  monthly,  out  of  the 
city  and  county  treasury,  and  out  of  the  special 
fee  fund  thereof,  after  being  first  allowed  and 
audited  as  other  similar  demands  are  by  law  re- 
quired to  be  allowed  and  audited:  To  the  presid- 
ing justice,  twenty-seven  hundred  dollars  per  an- 
num; to  the  other  justices  of  the  peace  and  the 


5§  98,  103  JUSTICES'   COURTS.  66 

justices'  clerk,  each,  twenty-four  liuudred  dollars 
per  annum;  to  the  deputy  of  the  justices'  clerk, 
twelve  hundred  dollars  per  annum. 

S  98.  The  justices  of  the  peace  elected  in  any 
such  city  and  county  at  the  general  election  of 
ei.Lihteen  hundred  and  seventy-nine,  or  persons  ap- 
pointed to  fill  their  places,  are  successors  of  the 
justices  of  the  peace  of  such  city  and  county  who 
held  office  at  the  time  of  such  election;  and  all 
records,  registers,  dockets,  books,  papers,  causes, 
actions,  and  proceedings  lodged,  deposited,  or 
ponding  before  the  justices'  court  or  any  justice 
of  any  such  city  and  county,  are  transferred  to 
the  justices'  court  of  such  city  and  county  herein 
provided  for,  which  shall  have  the  same  power 
and  jurisdiction  over  them  as  if  they  had  been 
in  the  first  instance  lodged,  deposited,  filed,  or 
commenced  therein. 

Transfer:  See  sees.  55.  79. 


ARTICLE  II. 
^J   ^  JUSTICES'    COURTS    IN   TOWNSHIPS. 

^      §  103.  Justices'   Courts   and   justices. 

^       §  104.  Courts,    where   held. 

^       §  105.  What  justice  may  hold   court  for  another. 

§  106.  Territorial  extent  of  civil   jurisdiction. 

^       §  107.  What   justices    successors    of    others. 

^  §  103.  There  shall  be  at  least  one  justice's 
court  in  each  of  the  townships  of  the  State,  for 
Mhich  one  justice  of  the  peace  shall  be  elected  by 
the  qualified  electors  of  the  township,  at  the  gen- 
eral State  election  next  preceding  the  expiration 
of  the  term  of  office  of  his  predecessor;  provided, 
tliat  in  any  county  where,  iii  the  opinion  of  the 
board  of  supervisors,  the  public  convenience  re- 
quires it,  the  said  board  may,  by  order,  provide 


bl 


JUSTICES'  COURTS.  §  '^^^ 


tli.at  two  justices'  courts  may  be  established  in 
any  towusliip,  designating  tlie  same  in  such  or- 
dei-;  and  in  such  case,  one  justice  of  the  peace 
shall  be  elected  in  the  manner  herein  provided  for 
each  of  said  courts.  In  every  city  having  fifteen 
thousand  and  not  more  than  thirty-four  thousand 
inhabitants,  there  shall  be  one  justice  of  the 
peace,  and  in  every  city  having  thirty-four  thou- 
sand and  not  more  than  one  hundred  thousand  in- 
habitants, two  justices  of  the  peace,  to  be  elected 
in  like  manner  by  the  electors  of  such  cities,  re- 
spectively; and  such  justices  of  the  peace  of  cities, 
and  justices'  courts  of  cities,  shall  have  the  same 
jurisdiction,  civil  and  criminal,  as  justices  of  the 
peace  of  townships  and  township  justices'  courts. 
No  person  shall  be  eligible  to  the  office  of  justice 
of  the  peace  in  any  city  having  over  fifteen  thou- 
sand inhabitants  who  has  not  been  admitted  to 
practice  law  in  a  court  of  record;  and  no  justice 
of  the  peace  shall  be  permitted  to  practice  law  be- 
fore any  other  justice  of  the  peace  in  the  city 
and  county  in  which  he  resides,  or  to  have  a 
partner  engaged  in  the  practice  of  law  in  any  jus- 
tice's court  in  such  city  or  county.  Every  justice 
of  the  peace  in  any  city  having  over  fifteen  thou- 
sand inhabitants  shall  receive  an  annual  salary 
of  two  thousand  dollars  per  annum,  and  shall  be 
provided  by  the  city  authorities  with  a  suitable 
office  in  which  to  hold  his  court.  All  fees  which 
are  by  law  chargeable  for  services  rendered  by 
such  justices  of  the  peace  in  the  cities  aforesaid 
shall  be  by  them,  respectively,  collected;  and  on 
the  first  Monday  in  each  month  every  such  city 
justice  of  the  peace  shall  make  report,  under  oath, 
to  the  city  treasurer,  of  the  amount  of  fees  so  by 
him  collected,  and  pay  the  amount  so  reported 
into  the  city  treasury,  to  the  credit  of  the  general 
fund  thereof. 


§§  104-106  JUSTICES-   COURTS.  68 

Sec.  2.  The  term  of  oliice  of  justices  of  the 
peace  noAv  elected  shall  not  be  affected  by  this  act. 
[Amendment  approved  March  31,  1891;  Stats. 
1891,  p.  456;  in  effect  immediately.] 

Eligibility  of  justices  of  the  peace:  See  sec.  159. 

Disabilities:  See  post,  sees.  170   et  seq. 

Fees:  See  Const.  Cal.,  art.  G,  sec.  15. 

Act  providing-  that  mayor  in  certain  cities  shall 
not  act  as  justices:  See  post,  Appendix,  p.  798. 

Creation  of  justices'  courts  in  various  places: 
See  post.  Appendix,  pp.  857  et  seq. 

§  104.  A  justice's  court  may  be  held  at  any 
place  selected  by  the  justice  holding  the  same,  in 
the  township  for  which  he  is  elected  or  appointed; 
and  such  court  shall  be  always  open  for  the  trans- 
action of  business. 

Always  open:  See  sees.  47,  73,  88,  ante. 

§  105.  A  justice  of  the  peace  of  any  township, 
or  city,  or  city  and  county  may  hold  the  court 
of  any  other  justice  of  the  peace  of  any  towmship, 
city  and  county,  or  city  within  the  same  county, 
at  his  written  request,  and  Avhile  so  acting  shall 
be  vested  with  all  the  powers  of  the  justice  for 
wliom  he  so  holds  court.  In  which  case  the  proper 
entry  of  the  proceedings  before  the  attending  jus- 
tice subscribed  by  him  shall  be  made  in  the  docket 
of  the  justice  for  whom  he  so  holds  the  court;  and 
the  same  shall  be  prima  facie  evidence  of  such 
proceedings,  and  form  and  become  a  part  of  the 
record  of  any,  or  any  part  of  any  and  all  actions, 
Causes,  or  proceedings  had  before  such  attending 
justice  while  so  holding  the  court.  [Approved 
February  IG,   1897;   Stats.   1897,  ch.   11.] 

§  106.  The  civil  jurisdiction  of  justices'  courts 
extends  to  the  limits  of  the  townships  in  which 
they  are  held:  but  mesne  and  final  process  of  any 


t;9  JUSTICES'  COURTS.  §§  107-111 

justices'  court  in  a  county  may  be  issued  to  and 
served  in  any  part  of  the  county. 

Jurisdiction:  See  sec.  94,  ante,  and  post,  sees.  112 
et  seq. 

§  107.  The  justices  of  the  peace  elected  in  the 
townships  at  the  general  State  election  of  eighteen 
hundred  and  seventy-nine,  or  persons  appointed 
to  till  their  places,  are  successors  of  the  justices 
of  the  peace  of  the  townships,  respectively,  who 
lield  office  at  the  time  of  such  election;  and,  in 
case  the  townships  of  any  county  are  hereafter 
changed  or  altered,  the  board  of  supervisors  of 
such  county  shall  make  provision  as  to  what  jus- 
tices shall  be  successors  of  the  justices  of  town- 
shi])s  so  changed  or  altered. 


ARTICLE  III. 

.JUSTICES    OP    THE    PEACE    AND    JUSTICES'    COURTS 
IN  GENERAL. 

§  110.  Terms  of  office. 

§  111.  Vacancies. 

§  112.  Civil  jurisdiction. 

§  113.  Concurrent  jurisdiction. 

S  114.  Civil  jurisdiction  restricted. 

S  115.  Criminal  jurisdiction. 

§  110.  The  term  of  office  of  justices  of  the 
peace  shall  be  tAvo  years  from  the  first  day  of  Jan- 
uary next  succeeding  their  election;  provided,  that 
all  justices  of  the  peace  elected  at  the  general 
State  election  of  eighteen  hundred  and  seventy- 
nine  shall  go  out  of  office  at  the  end  of  one  year 
from  the  first  day  of  January,  eighteen  hundred 
nnd  eighty. 

§  111.  If  a  vacancy  occurs  in  the  office  of  a 
justice  of  the  peace,  the  board  of  supervisors  of 


§  112  JUSTICES'  COURTS.  70 

the  county  shall  appoint  an  eligible  person  to  hold 
the  office  for  the  remainder  of  the  unexpired 
term. 

§  112.  Tlie  justices'  courts  shall  have  civil  ju- 
risdiction: 

J.  In  actions  arising  on  contract  for  the  recov- 
ery of  money  only  if  the  sum  claimed,  exclusive  of 
interest,  does  not  amount  to  three  hundred  dol- 
lars ; 

2.  In  actions  for  damages  for  injury  to  the  per- 
son, or  for  taking,  detaining,  or  injuring  personal 
property,  or  for  injury  to  real  property  where  no 
issue  is  raised  by  the  verified  answer  of  the  de- 
fendant involving  the  title  to  or  possession  of  the 
same,  if  the  damage  claimed  do  not  amount  to 
three  hundred  dollars; 

3.  In  actions  to  recover  the  possession  of  per- ' 
soual  property,  if  the  value  of  such  property  does 
not  amount  to  three  hundred  dollars; 

4.  lu  actions  for  a  fine,  penalty,  or  forfeiture, 
not  amounting  to  three  hundred  dollars,  given  by 
statute,  or  the  ordinance  of  an  incorporated  city 
and  county,  city  or  town,  where  no  issue  is  raised 
by  the  answer  involving  the  legality  of  any  tax, 
impost,   assessment,   toll,   or  municipal  fine; 

5.  In  actions  upon  bonds  or  undertalvings  con- 
ditioned for  the  payment  of  money,  if  the  sum 
claimed  does  not  amount  to  three  hundred  dol- 
lars, though  the  penalty  may  exceed  that  sum; 

0.  To  tal^e  and  enter  judgment  for  the  recoveiy 
of  money  on  the  confession  of  a  defendant,  when 
the  amount  confessed,  exclusive  of  interest,  does 
not  amount  to  three  hundred  dollars. 

Local  and  special  legislation  with  respect  to 
court  of  inferior  jurisdiction  is  prohibited  by  ar- 
ticle 4,  section  2.5,  constitution  of  1879. 


71  JUSTICES'  COURTS.  §§  113-llo 

S  113.  The  justices'  coiirts  shall  have  concur- 
rent jurisdiction  with  the  Superior  Courts  within 
their  respective  townships: 

1.  In  actions  of  forcible  entry  and  detainer, 
where  the  rental  value  of  the  property  entered  up- 
on or  unlawfully  detained  does  not  exceed  twenty- 
five  dollars  per  month,  and  the  whole  amount  of 
damages  claimed  does  not  exceed  two  hundred 
dollars; 

2.  In  actions  to  enforce  and  foreclose  liens  on 
personal  property,  where  neither  the  amount  of 
the  liens  nor  the  value  of  the  property  amounts  to 
tliree  hundred  dollars. 

Const.  Cal.,  art.  G.  sec.  11. 

Forcible  entry:    See  post,  sec.  1159  et  seq. 

§  114.  Except  as  in  the  last  preceding  section 
provided,  the  jurisdiction  of  the  justices'  courts 
sliall  not,  in  any  case,  trench  upon  the  jurisdiction 
of  the  several  courts  of  record  of  the  State,  nor 
extend  to  any  action  or  proceeding  against  ships, 
vessels,  or  boats,  for  the  recovery  of  seamen's 
wages  for  a  voyage  performed  in  whole  or  in  part 
A\-ithout  the  waters  of  this  State. 

Const.  Cal.,  art.  6,  sec.  11. 

Actions  against  vessels:  Sec.  813  et  seq.;  sec. 
82.-). 


^ 


>^  115.  The  justices'  courts  shall  have  jurisdic- 
tion of  the  following  public  offenses  committed 
within  the  respective  counties  in  which  such 
courts  are  established: 

1.  Petit  larceny; 

2.  Assault  or  battery  not  charged  to  have  been 
committed  upon  a  public  officer  in  the  discharge 
of  his  duties,  or  to  have  been  committed  with 
such  intent  as  to  render  the  offense  a  felony; 

3.  Breaches  of  the  peace,  riots,  routs,  affrays, 


§  121  POLICE    COURTS.  72 

committiui?  a  willful  injury  to  property,  and  all 
misdemeanors  punishable  by  tin©  not  exceeding 
five  hundred  dollars,  or  imprisonment  not  exceed- 
ing six  months,  or  by  both  such  fine  and  impris- 
onment. 

Act  conferring  power  to  act  as  police  judges: 
See  post.  Appendix,  p.  798. 


CHAPTER  AT. 

POLICE    COURTS. 
§  121.     Provided  for  in   Political   Code. 

§  121.  Police  courts  are  established  in  incorpo- 
rated cities  and  counties,  cities,  and  towns,  and 
their  organization,  jurisdiction,  and  powers  pro- 
vided for  in  tlie  Political  Code,  part  four. 

Proceedings  in  civil  actions:  See  post,  sec.  920. 

Police  courts  generally,  their  organization  and 
jurisdiction:  See  Polit.  Code,  sees.  4424  et  seq. 

Act  providing  that  mayors  in  certain  cities  shall 
not  be  required  to  act  as  police  judge:  See  post. 
Appendix,  p.  798. 

Act  transferring  business  to  after  new  constitu- 
tion: See  post.  Appendix,  p.  80.5. 


GENERAL    PROVISIONS.  §§  124,  12S 


CHAPTER  VII. 

GENERAL      PROVISIONS      RESPECTING     COURTS      OF 
JUSTICE. 

Article  I.  Publicity  of  Proceedings. 

II.  Incidental  Powers   and   Duties   of   Courts. 

III.  Judicial    Days. 

IV.  Proceedings   in   Case   of  Absence   of  Judge. 

V.    Provisions       Respecting       Places     of       Holding 
Courts. 
VI.    Seals  of  Courts. 


ARTICLE  I. 

PUBLICITY    OP   PROCEEDINGS. 

§  124.     Sittings,  public. 

§  125.     Sittings,    when  private. 

55  124.  The  sittings  of  every  court  of  justice 
shall  be  public,  except  as  provided  in  the  next 
section. 

U.  S.  Const.,  art.  6,  sec.  1,  amdts. 

The  original  of  tlie  various  sections  of  this  chap- 
ter will  be  found  in  Stats.  1863,  pp.  340  et  seq. 

§  125.  In  an  action  for  divorce,  criminal  con- 
versation, seduction,  or  breach  of  promise  of  mar- 
riage, the  court  may  direct  the  trial  of  any  issue 
of  fact  joined  therein  to  be  private,  and  may  ex- 
clude all  persons  except  the  officers  of  the  court, 
the  parties,  their  witnesses,  and  counsel;  provided', 
that  in  any  cause  the  court  may,  in  the  exercise 
of  a  sound  discretion,  during  the  examination  of  a 
witness,  exclude  any  or  all  other  witnesses  in 
the  cause. 

Divorce  genernlly:  Sec.  7(3,  subd.  4.  Testimony 
Icept  secret,  Tolit.  Code,  sec.  10.32. 

Exclusion  of  witnesses:  Sec.  2043. 
Code  Civ.   Proc— 7 


§  128  GENERAL  PROVISIONS.  74 

ARTICLE  II. 

INCIDENTAL    POWERS    AND    DUTIES    OF    COURTS. 

§  128.    Powers   respecting   conduct  of  proceedings. 
§  129.     Courts    of    record    may   malie    rules. 
§  130.    When  rules  take  effect. 

§  128.    Every  court  shall  have  power: 

1.  To  preserve  and  enforce  order  in  its  imme- 
diate presence; 

2.  To  enforce  order  in  the  proceedings  before  it, 
or  before  a  person  or  persons  empowered  to  con- 
duct a  judicial  investigation  under  its  authority; 

3.  To  provide  for  the  orderly  conduct  of  pro- 
ceedings before  it,  or  its  officers; 

4.  To  compel  obedience  to  its  judgments,  orders, 
and  process,  and  to  the  orders  of  a  judge  out  of 
court,  in  an  action  or  proceeding  pending  therein; 

5.  To  control  in  furtherance  of  justice,  the  con- 
duct of  its  ministerial  officers,  and  of  all  other 
persons  in  any  manner  connected  with  a  judicial 
proceeding  before  it,  in  every  matter  appertaining 
thereto; 

6.  To  compel  the  attendance  of  persons  to  testi- 
fy in  an  action  or  proceeding  pending  therein,  in 
the  cases  and  manner  provided  in  this  Code; 

7.  To  administer  oaths  in  an  action  or  proceed- 
ing pending  therein,  and  in  all  other  cases  where 
it  may  be  necessary  in  the  exercise  of  its  powers 
and  duties; 

8.  To  amend  and  control  its  process  and  orders 
so  as  to  make  them  conformable  to  law  and  jus- 
tice. 

PoAver  of  judicial  officers:  See  post,  sec.  177. 

Contempt:  See  post,  sec.  1209.  Same  in  justice's 
court:   See  sees.  90(3  et  sea. 

Subd.  G.  Attendance  of  witnesses:  See  post, 
sees.  1985  et  sea. 


75  GENERAL  PROVISIONS.  §§  129-134 

Subd.  7.  Administration  of  oaths:  See  post, 
sees.  2093  et  seq. 

§  129.  Every  court  of  record  may  mat:e  rules 
not  inconsistent  with  the  laws  of  this  State,  for  its 
own  government  and  the  government  of  its  offi- 
cers; but  such  rules  shall  neither  impose  any  tax 
or  charge  upon  any  legal  proceeding,  nor  give 
any  allowance  to  any  officer  for  services. 

Powers  of  courts,  judges,  etc.:  See  sees.  128, 
177. 

When  rules  take  effect:  Sec.  130. 

§  130.  Rules  adopted  by  the  Supreme  Court 
shall  talie  effect  sixty  days,  and  rules  adopted  by 
Superior  Courts,  thirty  days  after  their  publica- 
tion. 

ARTICLE  III. 

JUDICIAL    DAYS. 

§  133.     Days  on  which  courts,   etc.,   may  be  held. 

§  134.     Nonjudicial    days. 

§  135.    Appointments    on    nonjudicial    days. 

§  133.  Courts  of  justice  may  be  held  and  ju- 
dicial business  transacted  on  any  day,  except  as 
provided  in  the  next  section. 

§  134.  No  court  shall  be  open,  nor  shall  any 
judicial  business  be  transacted,  on  Sunday,  on  the 
first  day  of  January,  on  the  twenty-second  day  of 
February,  on  the  thirtieth  day  of  May,  on  the 
fourth  day  of  July,  on  the  ninth  day  of  September, 
on  the  first  Monday  of  September,  on  the  twenty- 
fifth  day  of  December,  on  a  day  upon  which  an 
election  is  held  throughout  the  State,  or  by  the 
Governor  of  this  State,  for  a  public  fast,  thanks- 
giving, or  holiday,  except  for  the  following  pur- 
poses: 


§§  135,  139  GENERAL  PROVISIONS.  76 

1.  To  give,  upon  their  request,  instructions  to  a 
jury  when  deliberating-  on  tlieir  verdict; 

2.  To  receive  a  verdict  or  discharge  a  jury; 

3.  For  the  exercise  of  the  powers  of  a  magis- 
trate in  a  criminal  action,  or  in  a  proceeding  of  a 
criminal  nature;  provided,  that  the  Supreme  Court 
and  tlie  Superior  Courts  sliall  always  be  open  for 
the  transaction  of  business;  and  provided  further, 
that  injunctions  and  writs  of  proliibition  may  be 
issued  and  served  on  any  day.  [Approved  Febru- 
ary 23,  1S97;  Stats.  1897,  ch.  10.  In  effect  imme- 
diately.] 

This  section  was  also  amended  in  1891;  Stats. 
1891,  p.  456. 

Holidays:  Sees.  10,  11;  also,  sees.  12,  13. 

Courts  always  open:  Sees.  47,  73,  104. 

Injunctions  and  writs  of  prohibition,  issuance 
of:  Sec.  7G,  subd.  5;  and  Const.  Cal.,  art.  G,  sec.  5. 

8  135.  If  any  day  mentioned  in  the  last  section 
happens  to  be  the  day  appointed  for  the  holding  or 
sitting  of  a  court,  or  to  which  it  is  adjourned,  it 
shall  be  deemed  appointed  for  or  adjourned  to  the 
next  day. 

ARTICLE  IV. 

PROCEEDINGS   IN    CASE    OF    ABSENCE    OF   JUDGE. 

§  139.     Adjournment  for  absence   of   judge. 
§  140.     Adjournment  till  next  regular  session. 

§  139.  If  no  judge  attend  on  the  day  appointed 
for  the  holding  or  sitting  of  a  court,  or  on  the  day 
to  which  it  may  have  been  adjourned,  before  noon, 
the  sheriff  or  cleric  shall  adjourn  the  same  until 
the  next  day,  at  10  o'clock  a.  m.,  and  if  no  judge 
attend  on  that  day,  before  noon,  the  sheriff  or 
clerk  shall  adjourn  the  same  until  the  following 
day  at  the  same  hour,  and  so  on,  from  day  to  day, 


77  GENERAL  PROVISIONS.  §§  140-143 

for  one  week,  unless  the  judge,  by  written  order, 
directs  it  to  be  adjourned  to  some  day  certain, 
fixed  in  said  order,  in  wliicli  case  it  shall  be  so  ad- 
journed. 
Nonjudicial  day:  Sec.  135. 

§  140.  If  no  judge  attend  for  one  week,  and  no 
J  written  order  be  made,  as  provided  in  the  last  sec- 
tion, the  sheriff  or  clerk  shall  adjourn  the  session 
until  tlie  time  appointed  for  the  holding  of  the 
next  regular  session. 

Sessions:  See  sec.  73. 


ARTICLE  Y. 

PROVISIONS      RESPECTING      PLACES      OF      HOLDING 
COURTS. 

§  142.     Change    in    certain  cases    of   place   of   holding   court. 

§  143.     Parties    to    appear    at    place    appointed. 

§  144.    When   Sheriff  to   provide  court-rooms,    etc. 

§  142.  The  judge  or  judges  authorized  to  hold 
or  preside  at  a  court  appointed  to  be  held  at  a 
particular  place  in  a  city  and  county,  county,  city, 
or  town,  may,  by  an  order  filed  with  the  city 
and  county  or  county  clerk,  and  published  as  he  or 
they  may  prescribe,  direct  that  the  court  be  held  or 
continued  at  any  other  place  in  the  city  and  coun- 
ty, county,  city  or  town  than  that  appointed,  when 
war,  insurrection,  pestilence,  or  other  public  ca- 
lamity, or  the  danger  thereof,  or  the  destruction  or 
danger  of  the  building  appointed  for  holding  the 
court,  may  render  it  necessary;  and  may,  in  the 
same  manner,  revoke  the  order,  and  in  his  or 
their  discretion,  appoint  another  place  in  the  same 
city  and  county,  county,  city,  or  town,  for  holding 
the  court. 

§  143.  When  the  court  is  held  at  a  place  ap- 
pointed, as  provided  in  the  last  section,  every  per- 


§§  144,  147  GENERAL   PROVISIONS.  78 

son  held  to  appear  at  the  court  must  appear  at 
the  place  so  appointed. 

§  144,  If  suitable  rooms  for  holding  the  Su- 
perior Courts  and  the  chambers  of  the  judges  of 
said  courts  be  not  provided  in  any  city  and  coun- 
ty, or  county,  by  the  supervisors  thereof,  together 
with  the  attendants,  furniture,  fuel,  lights,  and 
stationery  sufficient  for  the  transaction  of  busi- 
ness, the  courts,  or  the  judge  or  judges  thereof, 
may  direct  the  sheriff  of  the  city  and  county,  or 
county,  to  provide  such  rooms,  attendants,  furni- 
ture, fuel,  lights,  and  stationery;  and  the  expenses 
incurred,  certified  by  the  judge  or  judges  to  be 
correct,  shall  be  a  charge  against  the  city  and 
county  treasury,  and  paid  out  of  the  general  fund 
thereof. 


AllTICLE  VI. 

SEALS  OP  COURTS. 

§  147.  What  courts  shall  have  seals. 

§  148.  Seal  of  Supreme  Court. 

§  149.  Seals  of  Superior  Courts. 

§  150.  Seals  of  Police  Courts  of  cities  and  counties. 

§  151.  Seals,  how  provided:    private  seals,  when  used. 

§  152.  Clerk  of  court  to  keep  seal. 

§  153.  Seals  of  courts,   to  what  documents  affixed. 

§  147.    Each  of  the  following  courts  shall  have 
a  seal: 

1.  The  Supreme  Court; 

2.  The  Superior  Courts; 

3.  The  Police  Court  of  every  city  and  county. 
Seal  of  court— Judicial  notice  taken  of:  Sec.  1875, 

subd.  4;  court  commissioner  may  provide  official 
seal,  sec.  259,  subd.  5. 

Seals  discussed:  Sec.  14,  and  sec.  150. 

Police  courts  are  not  courts  of  record:  See  ante, 


79  GENERAL  PROVISIONS.  §§  148-151 

sees.  33,  34;  and  yet  have  a  seal:    Supra,  this  sec- 
tion. 

§  148.  The  seal  used  by  the  Supreme  Court, 
abolished  by  the  constitution,  shall  be  the  seal  of 
the  Supreme  Court  herein  provided  for;  but  the 
said  court  may  direct  the  clerk  of  the  Supreme 
Court  to  provide  two  duplicates  of  said  seal,  each 
of  which  shall  be  considered  the  same  as  and  have 
the  same  force  and  effect  as  the  original. 

§  149.  The  seals  of  the  Superior  Courts  shall  be 
circular,  not  less  than  one  and  three-fourths  inches 
in  diameter,  and  having  in  the  center  any  word, 
words,  or  design  adopted  by  the  judges  thereof, 
and  the  following  inscription  surrounding  the 
same:  "Superior  Court,  ,  California,"  insert- 
ing the  name  of  the  county,  or  city  and  county; 
provided,  that  the  seal  of  any  such  court,  which 
has  been  adopted  previous  to  the  passage  of  this 
act,  shall  be  the  seal  of  such  court,  until  another 
be  adopted. 

See  Act  of  March  31,  1880,  validating  writs, 
process  and  certificates  issued  from  Superior 
Courts  before  seal  provided:  See  post,  Appendix,  p. 
864. 

§  150.  The  police  court  of  every  city  and  coun- 
ty may  use  any  seal  having  upon  it  the  inscrip- 
tion, "Police  Court, ,"  (inserting  the  name  of 

the  city  and  county). 

§  151.  Courts  which  have  not  the  necessary 
seal  provided,  or  the  judge  or  judges  thereof,  shall 
request  the  supervisors  of  their  respective  coun- 
ties or  cities  and  counties,  to  provide  the  same, 
and  in  case  of  their  failure  to  do  so,  may  order 
the  sheriff  to  provide  the  same,  and  the  expense 
tliereof  shall  be  a  charge  against  the  county  or 


§5  152,  153  GENERAL  PROVISIONS.  80 

city  and  county  treasury,  and  paid  out  of  the  gen- 
eral fund  thereof;  and  until  such  seal  be  provided, 
the  clerk  of  each  court  may  use  his  private  seal, 
whenever  a  seal  is  required. 

§  152.  The  clerks  of  the  court  shall  keep  the 
seal  thereof. 

§  153.  The  seal  of  a  court  need  not  be  affixed 
to  any  proceeding  therein  or  document,  except: 

1.  To  a  writ; 

2.  To  the  certificate  of  probate  of  a  will,  or  of 
the  appointment  of  an  executor,  administrator,  or 
guardian; 

o.  To  the  authentication  of  a  copy  of  a  record, 
or  other  proceeding  of  a  court,  or  of  an  officer 
thereof,  or  of  a  copy  of  a  document  on  file  in  the 
office  of  the  clerk. 

Seals,  generally:  Sec.  14. 


si  JUDICIAL    OFFICERS   IN    GENERAL.  §  156 

TITLE  II. 

JUDICIAL   OFFICERS. 

Chapter  I.    Judicial  Officers  iu  General,  §§  156-1(J1. 
II.    Powers    and     Duties     of     Judges     at 

Chambers,  §§  165-166. 
III.    Disqualifications  of  Judges,  §§  170-172. 

IV.  Incidental  Powers  and  Duties  of  Ju- 

dicial Officers,  §§  176-179. 

V.  Miscellaneous    Provisions    Respe(.'ting 

Courts  and  Judicial  Officers,  §§  182- 
187. 

CHAPTER  I. 

JUDICIAL   OFFICERS    IN    GENERAL. 

§  156.     Qualifications   of  Justices   of   Supreme    Court. 

§  157.     Qualifications  of  Superior  Judges. 

$  158.     Residence  of  Superior  Judges. 

§  159.     Residence  and  qualification  of  Justices  of  the  Peace. 

§  160.  Judges  holding  Superior  Courts  at  request  of  Gov- 
ernor. 

§  161.  Justices  and  judges  ineligible  to  other  than  judicial 
office. 

§  156.  No  person  shall  be  eligible  to  the  office 
of  chief  or  associate  justice  of  the  Supreme  Court, 
unless  he  shall  have  been  a  citizen  of  the  United 
States  and  a  resident  of  this  State  for  two  years 
next  preceding  his  election  or  appointment,  nor 
unless  he  shall  have  been  admitted  to  practice  be- 
fore the  Supreme  Court  of  the  State. 

The  various  sections  of  this  title  are  founded 
upon  the  statute  of  1863,  pp.  833  et  seq.,  unless 
otherwise  stated. 

Judge  must  be  an  attorney:  Const.  Cal.,  ar(.  <». 
sec.  23. 


§§  157-160     JUDICIAL  OFFICERS   IN  GENERAL.  82 

§  157.  No  person  shall  be  eligible  to  the  office 
ot  judge  or  a  Superior  Court  unless  he  shall  have 
been  a  citizen  of  the  United  States  and  a  resident 
of  this  State,  for  two  years  next  preceding  his 
election  or  appointment,  nor  unless  he  shall  have 
been  admitted  to  practice  before  the  Supreme 
Court  of  the  State. 

§  158.  Each  judge  of  a  Superior  Court  shall  re- 
side at  the  county  seat  of  the  county  in  which 
such  court  is  held,  or  within  three  miles  thereof, 
and  within  the  county,  except  that  in  the  coun- 
ties of  Yuba  and  Sutter  the  judge  may  reside  in 
either  of  said  counties;  provided,  that  when  there 
is  more  than  one  judge  of  the  Superior  Court  in  a 
county,  it  shall  not  be  necessary  for  more  than 
one  judge  to  reside  at  the  county  seat,  as  provided 
herein.  [Amendment  approved  March  31,  1891; 
Stats.  1891.  p.  277.] 

§  159'.  Every  justice  of  the  peace  shall  reside 
in  the  city  and  county,  or  township,  in  which  his 
court  is  held,  and  no  person  shall  be  eligible  to  the 
office  of  justice-  of  the  peace  unless  he  shall  have 
been  a  citizen  of  the  United  States,  and  a  resident 
of  the  city  and  county,  or  county,  in  which  he  is 
to  serve  for  one  year  next  preceding  his  election  or 
appointment. 

§  160.  If,  by  reason  of  sickness,  absence,  disa- 
bility, or  other  cause,  a  regular  session  of  the  Su- 
perior Court  cannot  be  held  in  any  county  by  the 
judge  or  judges  thereof,  or  by  a  superior  judge, 
requested  by  him  or  them  to  hold  such  court,  a 
certificate  of  that  fact  shall  be  transmitted  by 
the  clerli  thereof  to  the  governor,  who  may  there- 
upon request  some  other  superior  judge  to  hold 
such  court;  and  a  judge  so  holding  a  court,  at  the 
request  of  the  governor,  or  at  the  request  of  the 


S3  POWERS    OF   JUDGES.  §§  161-166 

judge  or  judges  of  said  Superior  Court,  sliall  De 
allowed  liis  actual  aud  necessary  expenses  in  go- 
ing to,  returning  from,  and  attending  upon  the 
business  of  such  court,  which  shall  be  a  charge 
against  the  treasury  of  the  county  where  such 
court  is  held,  and  paid  out  of  the  general  fund 
thereof.  L Amendment  approved  March  15,  1887; 
Stats.  18S7,  p.  148.  In  effect  March  16,  1887.] 
See  sec.  71. 

§  Idl.  The  justices  of  the  Supreme  Court  and 
judges  of  the  Superior  Courts  shall  be  ineligible 
to  any  other  office  or  public  employment  than  a 
judicial  office  or  employment  during  the  term  for 
which  they  sliall  have  been  elected. 

Const.  Cal.,  art.  6,  sec.  18. 


CHAPTER  II. 

POWERS  OF  JUDGES  AT  CHAMBERS. 

§  165.    Powers  of  Justices  of  Supreme  Court  at  chambers. 
§  166.     Powers  of  Superior  Judges  at  chambers. 

§  165.  The  justices  of  the  Supreme  Court,  or 
any  of  them,  may,  at  chambers,  grant  all  orders 
and  writs  which  are  usually  granted  in  the  first 
instance  upon  an  ex  parte  application,  except 
writs  of  mandamus,  certiorari,  and  prohibition; 
and  may,  in  their  discretion,  hear  applications  to 
discharge  such  orders  and  writs. 

See  sec.  176;  also  sees.  177,  178,  179. 

§  166.  The  judge  or  judges  of  a  Superior  Court, 
or  any  of  them,  may,  at  chambers,  grant  all  or- 
ders and  writs  which  are  usually  granted  in  the 
first  instance  upon  an  ex  parte  application,  and 
may,  at  chambers,  hear  aud  dispose  of  such  or- 


§  170  DISQUALIFICATIONS    OF    JUDGES.  84 

ders  and  writs;  and  may  also,  at  chambers,  ap- 
point appraisers,  receive  inventories  and  accounts 
to  be  filed,  suspend  the  powers  of  executors,  ad- 
ministrators, or  guardians  in  the  cases  allowed 
by  law,  grant  special  letters  of  administration  or 
guardianship,  approve  claims  and  bonds,  and  di- 
rect the  issuance  from  the  court  of  all  writs  and 
process  necessary  in  tlie  exercise  of  their  powers, 
in  matters  of  probate. 

See,   generally,   sec.   ITG,  post. 

Hours,  etc.,  for  official  business:  Polit.  Code,  sec. 
4116. 

Probate  matters:  See  sec.  1305. 


CHAPTER  III. 

DISQUALIFICATIONS    OF  JUDGES. 

§  170.     Disqualifications  to  sit  or  act. 

§  171.     Certain  judges  not  to  practice  law. 

§  172.    No  judicial  ofiicer  to  have  partner  practicing  law. 

§  170.  No  justice,  judge,  or  justice  of  the  peace 
shall  sit  or  act  as  such  in  any  action  or  proceed- 
ing: 

1.  To  which  he  is  a  party  or  in  which  he  is  in- 
terested. 

2.  When  he  is  related  to  either  party,  or  to  an 
attorney,  counsel,  or  agent  of  either  party,  by  con- 
sanguinity or  affinity,  within  the  third  degree, 
computed  according  to  the  rules  of  law. 

3.  When  he  has  been  attorney  or  counsel  for 
either  party  in  the  action  or  proceeding. 

4.  When  it  appears  from  the  affidavit  or  affi- 
davits on  file  that  either  party  cannot  have  a  fair 
and  impartial  trial  before  any  judge  of  a  court 
of  record  about  to  try  the  case  by  reason  of  the 
prejudice  or  bias  of  such  judge,  said  judge  shall 
forthwith  secure  the  services  of  some  other  judge, 
of  the  same  or  another  county,  to  preside  at  the 


85  DISQUALIFICATIONS  OF  JUDGES.  §  171 

trial  of  said  action  or  proceediug;  provided,  that 
in  an  action  in  the  Superior  Court  of  a  county,  or 
of  a  city  and  county,  having  more  than  one  de- 
partment, said  action  shall  be  transferred  to  an- 
other department  thereof,  and  tried  therein  in  the 
same  manner  as  though  originally  assigneil  to  sucli 
department.  The  atlidavit  or  aftidavits  alleging 
the  disqualification  of  a  judge,  must  be  filed  and 
served  upon  the  adverse  party  or  the  attorney  for 
such  party  at  least  one  day  before  the  day  set 
for  trial  of  such  action  or  proceeding;  provided, 
counter  affidavits  may  be  filed  at  least  one  day 
thereafter,  or  such  further  time  as  the  court  may 
extend  the  time  for  filing  such  counter  attidavits, 
not  exceeding  five  days,  and  for  this  purpose  the 
court  may  continue  tlie  trial;  and  in  no  one  cause 
or  proceeding  can  more  than  one  such  change  of 
judges  be  had.  But  the  provisions  of  this  sec- 
tion shall  not  apply  to  the  arrangement  of  the 
calendar,  or  to  the  regulation  of  the  order  of  busi- 
ness, nor  the  power  of  transferring  the  action  or 
proceeding  to  some  other  court,  or  the  hearing  up- 
on such  afiidavits  and  counter  affidavits.  [Ap- 
proved March  31,  1897;  Stats.  1897,  ch.  190.] 

This  section  was  also  amended  .January  1,  1893; 
Stats.  1893,  p.  234. 

Change  of  venue:  Sec.  397,  subd.  4;  sec.  398, 

Rules  of  law.  Civ.  Code,  sees.  1392,  1393. 

Subd.  3.  Judge,  acting  as  attorney:  Sees.  171^ 
172. 

§  171.  No  justice,  or  judge  of  a  court  of  record, 
or  county  clerk,  shall  practice  law  in  any  court  of 
this  State,  nor  act  as  attorney,  agent,  or  .solicitor 
in  the  prosecution  of  any  claim  or  application  for 
lands,  pensions,  patent  rights,  or  other  proceed- 
ings, before  any  department  of  the  State  or  gen- 
ernl  government,  or  courts  of  the  United  States, 

Code   Civ.    Proc— 8. 


§§  172-177    INCIDENTAL   POWERS   AND    DUTIES.  86 

during  bis  coutiuiiance  in  office;  nor  shall  any  jus- 
tice of  the  peace  practice  law  before  any  justice's 
court  in  the  county  in  which  he  resides.  [Amend- 
ment approved  March  14,  1881;  Stats.  1881,  78.  In 
effect  March  14th,  1881.] 

§  172.  No  justice,  judge,  or  other  elective  judi- 
cial officer,  or  court  commissioner,  shall  have  a 
partner  acting  at  attorney  or  counsel  in  any  court 
of  this  State. 

CHAPTER  IV. 

INCIDENTAL.    POWERS      AND      DUTIES    OF    JUDICIAL 
OFFICERS. 

§  176.    Powers  of  judges  out  of  court. 

§  177.    Powers   of  judicial    officers     as   to   conduct     of   pro- 
ceedings. 
§  178.    To  punish  for  contempt. 
§  179.    To  take  acknowledgments  and  affidavits. 

§  176.  A  justice  or  judge  may  exercise  out  of 
court  all  the  powers  expressly  conferred  upon  a 
justice  or  judge,  as  contradistinguished  from  the 
court. 

See  sees.  165,  166,  179. 

§  177.    Every  judicial  officer  shall  have  power: 

1.  To  preserve  and  enforce  order  in  his  imme- 
diate presence,  and  in  proceedings  before  him, 
when  he  is  engaged  in  the  performance  of  official 
duty; 

2.  To  compel  obedience  to  his  lawful  orders  as 
provided    in   this    Code; 

3.  To  compel  the  attendance  of  persons  to  tes- 
tify in  a  proceeding  before  him,  in  the  cases  and 
manner  provided  in  this  Code; 

4.  To  administer  oaths  to  persons  in  a  proceed- 
ing pending  before  him,  and  in  all  other  cases 
where  it  may  be  necessary  in  the  exercise  of  his 
powers  and  duties. 

See  sec.  128. 


87  MISCELLANEOUS    PROVISIONS.  §§  178-182 

§  178.  For  the  effectual  exercise  of  the  powers 
couferred  by  the  last  section,  a  judicial  officer  may 
punish  for  contempt  in  the  cases  provided  in  this 
Code. 

Contempt— generally,  sec.  1209;  in  Justices' 
Courts,  sec.  906. 

§  179.  Each  of  the  Justices  of  the  Supreme 
Court,  and  Judges  of  the  Superior  Courts,  shall 
have  power  in  any  part  of  the  State,  and  every 
Justice  of  the  Peace  within  his  city  and  county, 
or  county,  and  a  Judge  of  a  Police  or  inferior 
court  within  his  city  and  county,  city,  or  town,  to 
take  and  certify: 

1.  The  proof  and  acknowledgment  of  a  convey- 
ance of  real  property,  or  of  any  other  written  in- 
strument; 

2.  The  acknowledgment  of  satisfaction  of  a 
judgment  of  any  court; 

3.  An  affidavit  or  deposition  to  be  used  in  this 
State. 

Subd.  1.  Real  property— conveyance  of:  See  sec. 
1971;  see  Civ.  Code,  sees.  1180  et  seq. 

Subd.  2.    Satisfaction  of  judgment,  sec.  675. 

Subd.  3.  Affidavit,  sec.  2009  et  seq.  Deposition, 
sec.  2019  et  seq. 

CHAPTER  V. 

MISCELLANEOUS    PROVISIONS    RESPECTING    COURTS 
AND    JUDICIAL    OFFICERS. 

§  182.  Subsequent    applications    for    orders    refused,    when 

prohibited. 

§  183.  Violations   of   preceding    section. 

§  184.  Proceedings   not   affected    by   vacancy   in   office. 

§  185.  Proceedings  to  be  in  English  language. 

§  186.  Abbreviations   and   figures. 

§  187.  Means  to  carry  jurisdiction  into  effect. 

§  182.  If  an  application  for  an  order  made  to  a 
Judge  of  a  court  in  which  the  action  or  proceed- 


§§  183-187         MISCELLANEOUS   PROVISIONS.  88 

ing  is  pending  is  refused  in  whole  or  in  part,  or  is 
granted  conditionally,  no  subsequent  application 
for  the  same  order  shall  be  made  to  any  Court 
commissioner,  or  any  other  judge,  except  of  a 
higher  court;  but  nothing  in  this  section  applies  to 
motions  refused  for  informality  in  the  papers  or 
proceedings  necessary  to  obtain  the  order,  or  to 
motions  refused  with  liberty  to  rencAv  the  same. 

Orders  and  motions  generally,  sec.  1003  et  seq. 

Orders,  appealable,  sec.  939,  subd.  3. 

§  183.  A  violation  of  the  last  section  may  be 
punished  as  a  contempt;  and  an  order  made  con- 
trary thereto  may  be  revoked  by  the  judge  or  com- 
missioner Avho  made  it,  or  vacated  by  a  judge  of 
the  court  in  which  the  action  or  proceeding  is 
pending. 

Penalty  for  violation:     See  sees.  90G,  1209. 

Ex  parte  order,  vacating  or  modifying,  sec.  937. 

§  184.  No  proceeding  in  any  court  of  justice,  in 
an  action  or  special  proceeding  pending  therein, 
shall  be  affected  by  a  vacancy  in  the  office  of  all 
or  any  of  the  judges  thereof. 

Vacancy,  sees.  42,  70. 

§  185,  Every  written  proceeding  in  a  court  of 
justice  in  this  State  shall  be  in  the  English  lan- 
guage, and  judicial  proceedings  shall  be  conduct- 
ed, preserved,  and  published  in  no  other. 

Words  and  phrases,  interpretation  of,  sees.  16, 
17. 

§  186.  Such  abbreviations  as  are  in  common 
use  may  be  used,  and  numbers  mny  be  expressed 
by  figures  or  numerals  in  the  customary  manner, 

§  187.  When  jurisdiction  is,  by  the  Constitu- 
tion of  this  Code,  or  by  any  other  statute,  con- 
ferred on  a  court  or  judicial  officer,  all  the  means 


S9  JURORS.  §  190 

necessary  to  carry  it  into  effect  are  also  given; 
and  in  the  exercise  of  tliis  jurisdiction,  if  the 
course  of  proceeding  be  not  specitically  pointed 
out  by  tliis  Code  or  tlie  statute,  any  suitable  pro- 
cess or  mode  of  proceeding  may  be  adopted  which 
may  appear  most  conformable  to  the  spirit  of  this 
Code. 

TITLE  III. 

PERSONS      SPECIALLY      INVESTED      WITH 
POWERS  OF  A  JUDICIAL  NATURE. 

Chapter  I.    Jurors,  §§  190-254. 

II.  Court  Commissioners,  §§  258,  259. 

CHAPTER  I. 

JURORS. 

Article  I.    Jurors  in  General. 

II.     Qualifications   and   Exemptions   of   Jurors. 

III.  Of    Selecting  and    Returning   Jurors   for    Courts 

of  Record. 

IV.  Of  Drawing  Jurors  for  Courts  of  Record. 

V.  Of  Summoning  Jurors  for  Courts  of  Record. 

VI.  Of  Summoning  Jurors  for  Courts  not  of  Record. 

VII.  Of  Summoning  Jurors  of  Inquest. 

VIII.  Obedience  to  Summons,   how  Enforced. 

IX.  Of   Impaneling    Grand   Juries. 

X.  Of   Impaneling   Trial    Juries    in    Courts    of    Rec- 
ord. 

XI.  Of     Impaneling    Trial     Juries     in     Courts  not  of 

Record. 

XII.  Of  Impaneling  Juries  of  Inquest. 

ARTICLE  I. 

JURORS  IN  GENERAL. 

§  190.  Jury   defined. 

§  191.  Different   kinds    of   juries. 

§  192.  Grand  jury  defined. 

§  193.  Trial  jury  defined. 

§  194.  Number   of   a   trial   jury. 

§  195.  Jury   of  inquest   defined. 

§  190.    A  jury  is  a  body  of  men  temporarily  se- 
lected from  the  citizens  of  a  particular  district. 


§§  191-195  JURORS.  90 

and  invested  with  power  to  present  or  indict  a 
person  for  a  public  offense,  or  to  try  a  question  of 
fact. 

Jurors,  qualificatious  and  exemptions,  sees.  198- 
202;  selecting  and  summoning,  sees.  204-238;  im- 
paneling, sees.  241-254. 

§  191.    Juries  are  of  three  liinds: 

1.  Grand  juries; 

2.  Trial  juries; 

3.  Juries  of  inquest. 

§  192.  A  grand  jury  is  a  body  of  men,  nineteen 
in  number,  returned  in  pursuance  of  law,  from 
the  citizens  of  a  county,  or  city  and  county,  be- 
fore a  court  of  competent  jurisdiction,  and  sworn 
to  inquire  of  public  offense  committed  or  triable 
within  the  county,  or  city  and  county. 

Grand  jury,  impaneling,  sees.  241-242.  How 
often  drawn.  Const.  Cal.  art.  1,  sec.  8. 

§  193.  A  trial  jury  is  a  body  of  men  returned 
from  the  citizens  of  a  particular  district  before  a 
court  or  officer  of  competent  jurisdiction,  and 
sworn  to  try  and  determine,  by  verdict,  a  question 
of  fact. 

Trial  by  jury,  sees.  600-619. 

Verdict,  when  need  not  be  unanimous,  Const. 
Cal.  art.  1,  sec.  7.    See  also,  sec.  618. 

§  194.  A  trial  jury  shall  consist  of  twelve  men; 
provided,  that  in  civil  actions  and  cases  of  mis- 
demeanor, it  may  consist  of  twelve,  or  of  any 
number  less  than  twelve,  upon  which  the  parties 
may  agree  in  open  court. 

Less  than  twelve.  Const.  Cal.  art.  1,  sec.  7. 

§  195.  A  jury  of  inquest  is  a  body  of  men  sum- 
moned from  the  citizens  of  a  particular  district 
before  the  Sheriff,  Coroner,  or  other  ministerial 
officer,  to  inquire  of  particular  facts. 


JURORS.  §§  198,  199 


ARTICLE  II. 

QUALIFICATIONS   AND    EXEMPTIONS    OF    JURORS. 

§  198.  Who  competent  to  act  as  juror. 

§  199.  Who  not  competent  to  act  as  juror. 

§  200.  Who  exempt  from  jury  duty. 

§  201.  Who   may  be   excused. 

§  202.  Affidavit  of  claim  to  exemption. 

§  198.  A  person  is  competent  to  act  as  juror  if 
be  be: 

1.  A  citizen  of  the  United  States  of  the  age  of 
twenty-one  years,  who  shall  have  been  a  resident 
of  the  Slate  one  year,  and  of  the  county,  or  city 
and  county,  ninety  days  before  being  selected  and 
returned; 

2.  In  possession  of  his  natural  faculties,  and  of 
ordinary  intelligence,  and  not  decrepit. 

3.  Possessed  of  suflScient  linowledge  of  the  Eng- 
lish language; 

4.  Assessed  on  the  last  assessment  roll  of  the 
county,  or  city  and  county,  on  property  belonging 
to  him. 

Residence,  generally:  See  Const.  Cal.  art.  2,  sec. 
4,  art.  20,  sec.  12;  Polit.  Code,  sec.  52. 

,    §  199.    A  person  is  not  competent  to  act  as  a 
juror: 

1.  Who  does  not  possess  the  qualifications  pre- 
scribed by  the  preceding  section;  or, 

2.  Who  has  been  convicted  of  malfeasance  in 
office,  or  any  felony  or  other  high  crime. 

§  200.  A  person  is  exempt  from  liability  to  act 
as  a  juror  if  he  be: 

1.  A  judicial,  civil,  or  military  officer  of  the 
United  States,  or  of  this  State; 


§  200  JURORS.  92 

2.  A  person  holding  a  county,  city  and  county, 
or  township  office; 

3.  An  attorney  at  law; 

4.  A  minister  of  the  gospel,  or  a  priest  of  any 
denomination  following  his  profession; 

5.  A  teacher  in  a  university,  college,  academy, 
or  school; 

6.  A  practicing  physician  or  druggist  actually 
engaged  in  the  business  of  dispensing  medicines; 

7.  An  officer,  keeper  or  attendant  of  an  alms- 
house, hospital,  asylum,  or  other  charitable  insti- 
tution ; 

8.  Engaged  in  the  performance  of  duty  as  offi- 
cer or  attendant  of  the  State  prison  or  of  a  county 
jail; 

9.  Employed  on  board  of  a  vessel  navigating 
the  waters  of  this  State; 

10.  An  express  agent,  mail  carrier,  superinten- 
dent, employe,  or  operator  of  a  telegraph  line  do- 
ing a  general  telegraph  business  in  this  State,  or 
keeper  of  a  public  ferry  or  toll-gate; 

11.  An  active  member  of  the  National  Guard  of 
California,  or  an  active  member  of  a  fire  depart- 
ment of  any  city  and  county,  city,  town,  or  vil- 
lage in  this  State,  or  an  exempt  member  of  a  duly 
organized  fire  company; 

12.  A  superintendent,  engineer,  or  conductor  on 
a  railroad;  or, 

13.  A  person  drawn  as  a  juror  in  any  court  of 
record  in  this  State,  upon  a  regular  panel,  who 
has  served  as  such  within  a  year;  but  this  exemp- 
tion shall  not  extend  to  a  person  who  is  sum- 
moned as  a  juror  for  the  trial  of  a  particular  case. 
[Approved  March  27,  1897;  Stats.  1897,  c.  125.  In 
effect  immediately.] 

Exemption,  how  claimed,  see.  202. 
Subd.  11.     Exempt  fireman,    Polit.    Code,    sees. 
3830,  3340. 


93  JURORS.  §§  201-204 

§  201.  A  juror  shall  not  be  excused  by  a  court 
for  slight  or  trivial  cause,  or  for  hardship  or  in- 
convenience to  his  business,  but  only  when  mate- 
rial injury  or  destruction  to  his  property,  or  of 
property  intrusted  to  him,  is  threatened,  or  when 
his  own  health,  or  the  sicliness  or  death  of  a  mem- 
ber of  his  family,  requires  his  absence. 

§  202.    If  a  person  exempt  from  liability  to  act 

as  a  juror,  as  provided  in  section  two  hundred,  be 

summoned  as  a  juror,  he  may  make  and  transmit 

his  affidavit  to  the  Cleric  of  the  Court  for  which 

i   he  is  summoned,  stating-  his  office,  occupation,  or 

;,  employment;  and  such  affidavit  shall  be  delivered 

^  by  the  Clerk  to  the  Judge  of  the  court  where  the 

i,   name  of  such  person  is  called,  and  if  sufficient  in 

I  substance,  shall  be  received  as  an  excuse  for  non- 

^   attendance  in  person.    The  affidavit  shall  then  be 

f   filed  by  the  Clerk. 


AKTICLE  III. 

OF   SELECTING  AND   RETURNING   JURORS. 

§  204.  Jury  lists,  by  whom  and  when  to  be  made. 

§  205.  How  selection  shall  be  made. 

§  206.  Lists   to  contain  how   many   names. 

§  208.  Lists  to  be  placed  with  Clerk. 

§  209.  Duty  of  Clerk;    jury  boxes. 

§  210.  Regular  jurors  to  serve  one  year. 

§  211.  Jurors   to   be   drawn   from  boxes. 

§  204.  In  the  month  of  .January  in  each  year  it 
shall  be  the  duty  of  the  Superior  Court  in  each  of 
the  coimties  of  this  State,  to  make  an  order  desig- 
nating the  estimated  number  of  grand  jurors,  and 
also  the  number  of  trial  jurors,  that  will,  in  the 
opinion  of  said  court,  be  required  for  the  transac- 


§  205  JURORS.  94 

tion  of  the  business  of  the  court  and  the  trial  of 
causes  therein  during  the  ensuing  year,  and  imme- 
diately after  said  order  designating  the  estimated 
number  of  grand  jurors  shall  be  made,  the  court 
shall  select  and  list  the  grand  jurors  required  by 
said  order  to  serve  as  grand  jurors  in  said  Su- 
perior Court  during  the  ensuing  year,  or  until  new 
lists  of  jurors  shall  be  provided;  and  said  selec- 
tions and  listings  shall  be  made  of  persons  suit- 
able and  competent  to  serve  as  jurors,  as  set  forth 
and  required  in  sections  two  hundred  and  five  and 
two  hundred  and  six  of  this  Code,  which  list  of 
persons  so  selected  shall  at  once  be  placed  in  the 
possession  of  the  County  Clerk;  and  immediately 
after  said  order  designating  the  estimatd  number 
or  trial  jurors  shall  be  made,  the  Board  of  Super- 
visors shall  select,  as  provided  in  sections  two  hun- 
dred and  five  and  two  hundred  and  six  of  this  Code, 
a  list  of  persons  to  serve  as  trial  jurors  in  the  Su- 
perior Court  of  said  county  during  the  ensuing 
year,  or  until  a  new  list  of  jurors  shall  be  pro- 
vided. In  counties  and  cities  and  counties  having 
a  population  of  one  hundred  thousand  inhabitants 
or  over,  such  selection  shall  be  made  by  a  major- 
ity of  the  judges  of  the  Superior  Courts.  [Amend- 
ment approved  March  23,  1893;  Stats.  1893,  297.] 

§  205.  The  selections  and  listings  shall  be  made 
of  persons  suitable  and  competent  to  serve  as  jur- 
ors, who  are  assessed  on  the  last  preceding  assess- 
ment roll  of  such  county  or  city  and  county,  and 
in  malting  such  selections  they  shall  talie  the 
names  of  such  only  as  are  not  exempt  from  serv- 
ing, who  are  in  the  possession  of  their  natural  fac- 
ulties, and  not  infirm  or  decrepit,  of  fair  charac- 
ter and  approved  integrity,  and  of  sound  judg- 
ment. [Amendment  approved  March  23,  1893; 
Stats.  1893.  297.] 


95  JURORS.  §§  206-210 

§  206.  The  list  of  jurors,  to  be  made  as  pro- 
vided in  the  preceding  section,  shall  contain  the 
number  of  persons  which  shall  have  been  desig- 
nated by  the  court  in  its  order.  The  names  for 
such  lists  shall  be  selected  from  the  different 
wards  or  townships  of  the  respective  counties,  in 
proportion  to  the  number  of  inhabitants  therein, 
as  nearly  as  the  same  can  be  estimated  by  the  per- 
sons making  said  lists;  and  said  lists  shall  be 
kept  separate  and  distinct  one  from  the  other. 
[Amendment  approved  March  7,  1881;  Stats.  1881, 
70.    In  effect  January  1,  1882.] 

§  207.  [In  enacting  new  section  this  number 
was  omitted.] 

§  208.  A  certified  list  of  the  persons  selected  to 
serve  as  trial  jurors  shall  at  once  be  placed  in  the 
possession  of  and  filed  with  the  Clerk  of  the  Su- 
perior Court.  [Amendment  approved  March  23, 
1803;  Stats.  1893,  297.] 

§  209.  On  receiving  such  lists,  the  County 
Clerk  shall  file  the  same  in  his  ofiice,  and  write 
down  the  names  contained  thereon  on  separate 
pieces  of  paper,  of  the  same  size  and  appearance, 
and  fold  each  piece  so  as  to  conceal  the  name 
thereon.  He  shall  deposit  the  pieces  of  paper  hav- 
ing on  them  the  names  of  the  persons  selected  to 
serve  as  grand  jurors  in  a  box,  to  be  called  the 
•'grand  jury  box";  and  those  having  on  them  the 
names  of  the  persons  selected  to  serve  as  trial  jur- 
ors, in  a  box  to  be  called  the  "trial  jury  box." 
[Amendment  approved  March  7,  1881;  Stats.  1881, 
70.    In  effect  July  1,  1882.] 

<>  210.  The  persons  whose  names  are  so  re- 
turned shall  be  known  as  regular  jurors,  and  shall 
serve  for  one  year,  and  until  other  persons  are  se- 
lected and  returned. 


S§  211,  214  JURORS.  96 

§  211.  The  names  of  persons  drawn  for  grand 
jurors  shall  be  drawn  from  the  "grand  jury  box," 
and  the  names  of  persons  for  trial  jurors  shall  be 
drawn  from  the  "trial  jury  box";  and  if,  at  the 
end  of  the  year,  there  shall  be  the  names  of  per- 
sons in  either  of  the  said  jury  boxes  who  may  not 
have  been  drawn  during  the  year  to  serve,  and 
have  not  served  as  jurors,  the  names  of  such  per- 
sons may  be  placed  on  the  list  of  jurors  drawn 
for  the  succeeding  year.  [Amendment  approved 
March  7,  1881;  Stats.  1881,  70.  In  effect  Januarv 
1,  1882.  J 


ARTICLE   IV. 

OF  DRAWING  JURORS  FOR  COURTS  OF  RECORD. 

§  214.  Order  of  judge  or  judges  for  drawing  of  jury. 

§  215.  Sheriff  to  be  notified. 

§  219.  Drawing,   how  conducted. 

§  220.  Preservation   of  ballots   drawn. 

^  214.  "Whenever  the  business  of  the  Superior 
Court  shall  require  the  attendance  of  a  trial  jury 
for  the  trial  of  criminal  cases,  or  where  a  trial 
jury  shall  have  been  demanded  in  any  cause  or 
causes  at  issue  in  said  court,  and  no  jury  is  in 
attendance,  the  court  may  make  an  order  direct- 
ing a  trial  jury  to  be  drawn,  and  summoned  to 
attend  before  said  court.  Such  order  shall  speci- 
fy the  number  of  jurors  to  be  drawn,  and  the 
time  at  which  the  jurors  are  required  to  attend. 
And  the  court  may  direct  that  such  causes,  either 
criminal  or  civil,  in  which  a  jury  may  be  required, 
or  in  which  a  jury  may  have  been  demanded,  be 
continued  and  fixed  for  trial  when  a  jury  shall 
be  in  attendance. 

See  sec.  220,  post. 

Superior  Courts,  sees.  65-79. 


97  JURORS.  §§  215-219 

§  215.  Immediately  upon  the  order  mentioned 
in  the  preceding  section  being  made,  the  cleric 
shall,  in  the  presence  of  the  court,  proceed  to  draw 
the  jurors  from  the  "trial  jury  box."  [Amend- 
ment approved  March  7,  1881;  Stats.  1881,  71.  In 
effect  January  1,  1882.] 

§§  216,  217,  218.  No  sections  of  these  num- 
bers. 

§  219.  The  clerli;  must  conduct  said  drawing  as 
follows; 

1.  He  must  shali;e  the  box  containing  the  names 
of  the  trial  jurors,  so  as  to  mix  the  slips  of  paper 
upon  which  such  names  are  written,  as  well  as 
possible;  he  must  then  draw  from  said  box  as 
many  slips  of  paper  as  are  ordered  by  the  court. 

2.  A  minute  of  the  drawing  shall  be  entered  in 
the  minutes  of  the  court,  which  must  show  the 
name  on  each  slip  of  paper  so  drawn  from  said 
jury  box. 

3.  If  the  name  of  any  person  is  drawn  from  said 
box  who  is  deceased  or  insane,  or  who  may  have 
permanently  removed  from  the  county,  or  who  is 
exempt  from  jury  service,  and  the  fact  shall  be 
made  to  appear  to  the  satisfaction  of  the  court,  the 
name  of  such  person  shall  be  omitted  from  the  list, 
and  the  slip  of  paper  having  such  name  on  it  shall 
be  destroyed,  and  another  juror  draw^n  in  his 
place,  and  the  fact  shall  be  entered  upon  the  min- 
utes of  the  court.  Tlie  same  proceeding  shall  be 
had  as  often  as  may  be  necessary,  until  the  whole 
number  of  jurors  required  be  drawn.  After  the 
drawing  shall  be  completed,  the  clerlv  shall  mal^e 
a  copy  of  the  list  of  names  of  the  persons  so 
drawn,  and  certify  the  same.  In  his  certificate  he 
shall  state  the  date  of  the  order  and  of  the  draw- 
ing, and  the  number  of  the  jurors  drawn,  and  the 
time  when  and  the  place  where  such  jurors  are 

Code  Civ.   Proc— 9. 


§§  220,  225  JURORS.  98 

required  to  appear.  Such  certificate  and  list  shall 
be  delivered  to  the  Sheriff  for  service.  [Amend- 
ment approved  March  7,  1881;  Stats.  1881,  71.  In 
effect  January  1,  1882.] 

§  220.  After  a  drawing  of  persons  to  serve  as 
jurors,  the  Clerli  shall  preserve  the  ballots  drawn, 
and  at  the  close  of  the  session  or  sessions  for 
which  the  drawing  was  had,  he  shall  replace  in 
the  proper  box  from  which  they  were  taken  all 
ballots  which  have  on  them  the  names  of  per- 
sons, who  did  not  serve  as  jurors  for  the  session 
or  sessions  aforesaid,  and  who  are  not  exempt  or 
incompetent. 


ARTICLE  V. 

OF  SUMMONING  JURORS  FOR  COURTS  OF  RECORD. 

§  225.     Sheriff    to    summon    jurors,    how. 
§  226.     Of  drawing  and  summoning  jurors  to  attend  forth- 
with. 
§  227.  .Of  summoning  jurors  to  complete  a  panel. 
§  228.     Compensation  of  elisor. 

§  225.  The  Sheriff,  as  soon  as  he  receives  the 
list  or  lists  of  jurors  drawn,  shall  summon  the 
persons  named  therein  to  attend  the  court  at  the 
opening  of  the  regular  session  thereof,  or  at  such 
session  or  time  as  the  court  may  order,  by  giving 
personal  notice  to  that  effect  to  each  of  them,  or 
by  leaving  a  written  notice  to  that  effect  at  his 
place  of  residence,  with  some  person  of  proper  age, 
and  shall  return  the  list  to  the  court  at  the  open- 
ing of  the  regular  session  thereof,  or  at  such  ses- 
sion, or  time  as  the  jurors  may  be  ordered  to  at- 
tend, specifying  the  names  of  those  who  were 
summoned,  and  the  manner  in  which  each  person 
was  notified. 


?5  JURORS.  §§  226-230 

§  226.  Whenever  jurors  are  not  drawn  or  sum- 
moned to  attend  any  court  of  record  or  session 
thereof,  or  a  sufficient  number  of  jurors  fail  to  ap- 
pear, such  court  may  order  a  sufficient  number  to 
bf;  forthwith  drawn  and  summoned  to  attend  the 
court,  or  it  may,  by  an  order  entered  in  its  min- 
utes, direct  the  Sheritf,  or  an  elisor  chosen  by  the 
court,  forthwith  to  summon  so  many  good  and 
lawful  men  of  the  county,  or  city  and  county,  to 
serve  as  jurors,  as  may  be  required,  and  in  either 
case  such  jurors  must  be  summoned  in  the  man- 
ner provided  iu  the  preceding  section. 

§  227.  When  there  are  not  competent  jurors 
enough  present  to  form  a  panel  the  court  may  di- 
rect the  Sheriff,  or  an  elisor  chosen  by  the  court, 
to  summon  a  sufficient  number  of  persons  having 
the  qualifications  of  jurors  to  complete  the  panel, 
from  the  body  of  the  county,  or  city  and  county, 
and  not  from  the  bystanders;  and  the  Sheriff  or 
elisor  shall  summon  the  number  so  ordered  ac- 
cordingly and  return  the  names  to  the  court. 

§  228.  An  elisor  who  shall,  by  order  of  a  court 
of  record,  summon  persons  to  serve  as  jurors,  shall 
be  entitled  to  a  reasonable  compensation  for  his 
services,  which  must  be  fixed  by  the  court  and 
paid  out  of  the  county  or  city  and  county  treasury, 
and  out  of  the  general  fund  thereof. 

ARTICLE  YI. 

OF  SUMMONING  JURORS   FOR  COURTS   NOT   OF   REC- 
ORD. 

§  230.     Jurors    for    Justices'    or    Police    Courts. 
§  231.    How  to  be  summoned. 
§  232.     Officer's    return. 

§  230.  When  jurors  are  required  in  any  of  the 
Justices'  Courts,  or  in  any  police  or  other  inferior 


§§  231-235  JURORS.  100 

court,  tliey  shall,  upon  the  order  of  the  Justice,  or 
auy  one  of  the  justices  where  there  is  more  than 
one,  or  of  the  Judge  thereof,  be  summoned  by  the 
Sheriff,  constable,  marshal,  or  policeman  of  the 
jurisdiction. 

Cause  of  challenge  in  justices'  court  in  Hum- 
boldt: See  post.  Appendix,  p.  860,  Stat. 

§  231.  Such  jurors  must  be  summoned  from  the 
persons  competent  to  serve  as  jurors,  residents  of 
the  city  and  county,  township,  city,  or  town  in 
which  such  court  has  jurisdiction,  by  notifying 
theju  orally  that  they  are  summoned,  and  of  the 
time  and  place  at  which  their  attendance  is  re- 
quired. 

§  232.  The  officer  summoning  such  jurors  shall, 
at  the  time  fixed  in  the  order,  for  their  appearance, 
return  it  to  the  court  with  a  list  of  the  persons 
summoned  indorsed  thereon. 


ARTICLE  VII. 

OF    SUMMONING    JURIES    OF    INQUEST. 

§  235.    How  to  be  summoned, 

S  235.  Juries  of  inquest  shall  be  summoned  by 
the  officer  before  whom  the  proceedings  in  which 
they  are  to  sit  are  to  be  had,  or  by  any  Sheriff, 
constable,  or  policeman,  from  the  persons  compe- 
tent to  serve  as  jurors,  resident  of  the  county,  or 
city  and  county,  by  notifying  them  orally  that 
Ihey  are  so  summoned,  and  of  the  time  and  place 
at  Avhich  their  attendance  is  required. 


101  JURORS.  §§  238,  241 

ARTICLE  VIII. 

OBEDIENCE   TO   SUMMONS,   HOW  ENFORCED. 

§  23S.     Attachment  and  fine. 

§  238.  Any  juror  summoned,  who  willfully  and 
without  reasonable  excuse  fails  to  attend,  may  be 
attached  and  compelled  to  attend;  and  the  court 
may  also  impose  a  tine  not  exceeding  fifty  dollars, 
upon  which  execution  may  issue.  If  the  juror 
was  not  personally  served,  the  fine  must  not  be 
imposed  until  upon  an  order  to  show  cause  an 
opportunity  has  been  offered  the  juror  to  be  heard. 

ARTICLE   IX. 

OF   IMPANELING   GRAND   JURIES. 

§  241.     Grand  jury,   when  to  be  impaneled. 

§  242.     How  constituted. 

§  243.     Manner  of  impaneling  prescribed  in  Penal   Code. 

§  841.  Every  Superior  Court,  whenever  in  the 
opinion  of  the  court  the  public  interest  must  re- 
quire it,  may  make  and  file  with  the  County  Clerk, 
an  order  directing  a  jury  to  be  drawn,  and  desig- 
nating the  number,  which,  in  case  of  a  grand  jury, 
shall  not  be  less  than  twenty-five  nor  more  than 
thirty.  In  all  counties  having  less  than  three  Su- 
perior Court  judges,  there  shall  be  one  grand  jury 
drawn  and  impaneled  in  each  year;  and  in  all 
counties  having  three  or  more  Superior  Court 
judges,  there  shall  be  two  grand  juries  drawn  and 
impaneled  in  each  year.  Such  order  must  desig- 
nate the  time  at  which  the  drawing  will  take 
place.  The  names  of  such  jurors  shall  be  drawn, 
the  list  of  names  certified  and  summoned,  as  pro- 
vided for  drawing  and   summoning  trial  jurors; 


§§  242,  243  JURORS.  102 

aud  the  names  of  any  persons  drawn,  who  may 
not  be  impaneled  upon  the  grand  jury,  may  be 
again  placed  in  the  grand  jury  box.  [Amendment 
approved  March  7,  1881;  Stats.  1881,  71.  In  effect 
January  1,  1882.] 
Const.  Cal.  art.  1,  sec.  8. 

§  242.  When,  of  the  persons  summoned  as 
grand  jurors  and  not  excused,  nineteen  are  pres- 
ent, they  shall  constitute  the  grand  jury.  If  more 
than  nineteen  of  such  persons  are  present,  the 
Clerk  shall  write  their  names  on  separate  ballots, 
which  he  must  fold  so  that  the  names  cannot  be 
seen,  place  them  in  a  box,  and  draw  out  nineteen 
of  them,  and  the  persons  whose  names  are  on  the 
ballots  so  drawn  shall  constitute  the  grand  jury. 
If  less  than  nineteen  of  such  persons  are  present, 
the  panel  may  be  lilled  as  provided  in  section  two 
hundred  and  twenty-six  of  this  Code.  And  when- 
ever, of  the  persons  summoned  to  complete  a 
grand  jury,  more  shall  attend  than  are  required, 
the  requisite  number  shall  be  obtained  by  writing 
the  names  of  those  summoned  and  not  excused  on 
ballots,  depositing  them  in  a  box,  and  drawing  as 
above  provided. 

§  243.  Thereafter  such  proceedings  shall  be 
had  in  impaneling  the  grand  jury  as  are  pre- 
scribed in  Part  II.  of  the  Penal  Code. 

See  Penal  Code,  sees.  894-901. 


JURORS.  §§  246-250 


AIITICLE  X. 

OF   IMPANELING  TRIAL  JURIES   IN   COURTS   OF   REC- 
ORD. 

§  246.     Clerk  to  call  list  of  jurors  summoned. 

§  247.    Manner  of  impaneling  prescribed  in  part  two. 

§  246.  At  the  opening  of  court  on  the  day  trial 
jurors  have  been  summoned  to  appear,  the  Clerk 
shall  call  the  names  of  those  summoned,  and  the 
court  may  then  hear  the  excuses  of  jurors  sum- 
moned. The  Clerk  shall  then  write  the  names  of 
the  jurors  present  and  not  excused  upon  separate 
slips  or  ballots  of  paper,  and  fold  such  slips  so 
that  the  names  are  concealed,  and  there,  in  the 
presence  of  the  court,  deposit  the  slips  or  ballots  in 
a  box,  which  must  be  kept  sealed  or  locked  until 
ordered  by  the  court  to  be  opened. 

§  247.  Whenever  thereafter  a  civil  action  is 
called  by  the  court  for  trial,  and  a  jury  is  required, 
such  proceedings  shall  be  had  in  impaneling  the 
trial  jury  as  are  prescribed  in  Part  II.  of  this 
Code.  If  the  action  be  a  criminal  one,  the  jury 
shall  be  impaneled  as  prescribed  in  the  Penal 
Code. 

Civil  action:    See  sees.  600-604. 

Criminal  case:   See  Penal  Code,  sees.  1055-1088. 

ARTICLE  XI. 

OF   IMPANELING   TRIAL   JURIES   IN   COURTS   NOT   OF 
RECORD. 

§  250.    Proceedings   in   forming  jury. 
§  251.    Manner    of    impaneling. 

§  250.  At  the  time  appointed  for  a  jury  trial 
in   Justices,    Police   or  other  inferior  courts,    the 


§§  251,  258  COURT   COMMISSIONERS.  104 

list  of  jurors  summoned  must  be  called,  and  the 
names  of  those  attending-  and  not  excused  must  be 
written  upon  separate  slips  of  paper,  folded  so 
as  to  conceal  the  names,  and  placed  in  a  box, 
from  which  the  trial  jury  must  be  drawn. 

§  251.  Thereafter,  if  the  action  is  a  criminal 
one,  the  jury  must  be  impaneled  as  provided  in 
the  Penal  Code;  if  a  civil  one,  as  provided  in  Part 
II.  of  this  Code. 

See  sec.  247. 


ARTICLE  XII. 

OF  IMPANELING  JURIES   OF  INQUEST. 
§  254.     Manner   of   impaneling. 

§  254.  The  manner  of  impaneling  juries  of  in- 
quest is  prescribed  in  the  provisions  of  the  differ- 
ent codes  relating  to  such  inquests. 


CHAPTER  II. 

COURT  COMMISSIONERS. 

§  258.     Appointment   and   qualifications. 
§  259.     Powers  of  court  commissioners. 

§  258,  The  Superior  Court  of  every  city  and 
county  in  the  State  may  appoint  six  commission- 
ers, to  be  designated  each  as  "court  commission- 
ers" of  such  city  and  county;  and  the  Superior 
Court  of  every  other  county  in  the  State  may  ap- 
point one  commissioner,  to  be  designated  as  "court 
commissioner"  of  such  county.  Sucli  commission- 
ers shall  be  citizens  of  the  United  States,  and  resi- 
dents of  the  city  and  county,  or  county,  in  which 


105  COURT  COMMISSIONERS.  §  259 

they  are  appointed,   and  hold  offices  during  the 
pleasure  of  the  courts  appointing  them. 
Const.  Cal.  art.  0,  sec.  14. 

§  259.  Every  Court  Commissioner  shall  have 
power: 

1.  To  hear  and  determine  ex  parte  motions  for 
orders  and  writs,  except  orders  or  writs  of  in- 
junction in  the  Superior  Court  of  the  county,  or 
city  and  county,  for  which  he  is  appointed;  pro- 
vided, that  he  shall  have  power  to  hear  and  de- 
termine such  motions  only  in  the  absence  or  in- 
ability to  act  of  the  Judge  or  Judges  of  the  Supe- 
rior Court  of  the  county,  or  city  and  county; 

2.  To  take  proof  and  report  his  conclusions 
thereon  as  to  any  matter  of  fact  other  than  an 
issue  of  fact  raised  by  the  pleadings,  upon  which 
information  is  required  by  the  court;  but  any  par- 
ty to  the  proceedings  may  except  to  such  report 
within  five  days  after  written  notice  that  the 
same  has  been  filed,  and  may  argue  his  exceptions 
before  the  court  on  giving  notice  of  motion  for 
that  purpose; 

3.  To  tal^e  and  approve  bonds  and  undertakings 
whenever  tlie  same  may  be  required  in  actions  or 
proceedings  in  such  Superior  Courts,  and  to  exam- 
ine the  sureties  thereon  when  an  exception  has 
been  taken  to  their  sufficiency,  and  to  administer 
oaths  and  affirmations,  and  take  afiidavits  and  dep- 
ositions in  any  action  or  proceeding  in  any  of  the 
courts  of  this  State,  or  in  any  matter  or  proceeding 
whatever,  and  to  take  acknowledgments  and  proof 
of  deeds,  mortgages,  and  other  instruments  requir- 
ing proof  or  acknowledgment  for  any  purpose  un- 
der the  laws  of  this  State; 

4.  To  charge  and  collect  the  same  fees  for  the 
performance  of  official  acts  as  are  now  or  may 
hereafter  be  allowed  by  law  to  notaries  public  in 
this   State   for  like   services;   provided,   that  this 


§  262    OF  MINISTERIAL  OFFICERS  GENERALLY.         106 

subdiTision  shall  not  apply  to  any  services  of  such 
eommissioner,  the  compensation  for  which  is  ex- 
pressly fixed  by  law; 

5.  To  provide  an  official  seal,  upon  which  must 
be  engraved  the  words  "Court  Commissioner"  and 
the  name  of  the  county,  or  city  and  county,  in 
which  said  commissioner  resides; 

6.  To  authenticate  with  his  official  seal  his  offi- 
cial acts. 

Judicial  powers,  persons  having,  order  enforced 
before,  sec.  128,  subd.  2, 

Keferences  and  trials  by  referees:  See  post,  sees. 
638  et  sea. 

Subd.  4.  Fees  of  notaries  public:  See  Polit. 
Code,  sec.  798.  Justices  of  the  peace  and  court 
commissioners  are  the  only  judicial  officers  who 
are  authorized  to  receive  fees:  Const.  Cal.  art.  6, 
sec.  15. 

Subd.  5.    Official  seals  defined:  See  ante,  sec.  14. 


TITLE  IV. 

MINISTERIAL     OFFICERS     OF     COURTS     OF 
JUSTICE. 

Chapter  I.    Of    Ministerial    Officers    generally,   § 
262. 
II.    Secretaries  and  Bailiffs    of    the    Su- 
preme Court.  §§  265,  266. 
III.    Phonographic  Reporters,  §§  268-269. 

CHAPTER   I. 

OF  MINISTERIAL  OFFICERS  GENERALLY. 
§  262.    Election,   powers,   and  duties,   where  prescribed. 

§  262.  The  modes  and  times  of  election,  terms, 
powers,  and  duties  of  the  Attorney  General,  Clerk 
of  the  Supreme  Court.  Reporter  of  the  Decisions 


107  SECRETARIES  AND  BAILIFFS.  §§  265-26o 

of  the  Supreme  Court,  clerks,  sheriffs,  and  coro- 
ners, are  prescribed  in  the  Political  and  Penal 
Codes. 

Attornej'  General:  See  Polit.  Code,  sees.  470  et 
seq. 

Clerk  of  Supreme  Court:  Polit  Code,  sees.  749  et 
seq. 

Reporter  of  Supreme  Court  Decisions:  Polit. 
Code,  sees.  771  et  seq. 

County  clerks:  Polit  Code,  sees.  4204  et  seq. 

Sheriflfs:  Polit.  Code,  sec.  4176;  Pen.  Code,  sees. 
1216  et  seq.;  1601  et  seq. 

Coroners:  Polit.  Code,  sees.  4285  et  seq.;  Pen. 
Code,  sec.  1510. 

CHAPTER  II. 

SECRETARIES     AND     BAILIFFS     OF     THE     SUPREME 
COURT. 

§  265.    Appointment. 

§  236.     Tenure  of  office,  and  duties. 

§  265.  The  Justices  of  the  Supreme  Court  may 
appoint  two  secretaries  and  two  bailiffs,  who  shall 
be  citizens  of  the  United  States  and  of  this  State. 

§  266.  The  secretaries  and  bailiffs  shall  hold 
tlieir  offices  at  the  pleasure  of  the  justices,  and 
shall  perform  such  duties  as  may  be  required  of 
them  by  the  court  or  any  justice  thereof. 


§§  268,  269         PHONOGRAPHIC    REPORTERS.  108 

CHAPTER  III. 

PHONOGRAPHIC    REPORTERS. 

§  268.     Phonographic    reporters    for    Supreme    Courts,    wheie 

provided  for. 
§  269.     Phonographic    reporters    for    Superior    Courts,    their 

appointment,  and  duties. 
§  270.     Qualifications   and   test   of  competency. 
§  271.     Attention  to   duties;   reporters  pro  tempore. 
§  272.     Oath  of  office. 

§  273.     Reports    prima    facie    correct    statements. 
§  274.     Compensation. 

§  268.  Phonograpliic  reporters  for  the  Supreme 
Court  are  provided  for  iu  Part  HI.  of  the  Political 
Code. 

See  Polit.  Code,  see.  739,  as  to  salaiy,  sec.  769 
as  to  appoiutmeiit,  and  sec.  770  as  to  duty,  of 
phonographic  reporter  of  Supreme  Court. 

§  2169.  The  Judge  or  Judges  of  any  Superior 
Court  in  the  State  may  appoint  a  competent  phon- 
ographic reporter,  or  as  many  such  reporters  as 
tliere  are  judges,  to  be  l^nown  as  official  reporter 
or  reporters  of  such  court,  and  to  hold  office  dur- 
ing the  pleasure  of  the  judge  or  judges  appointing 
them.  Such  reporter,  or  any  one  of  them,  where 
there  are  two  or  more,  shall,  at  the  request  of 
eitlier  party,  or  of  the  court  in  a  civil  action  or 
proceeding,  and  on  the  order  of  the  court,  the  Dis- 
trict Attorney,  or  the  attorney  for  defendant  in  a 
criminal  action  or  proceeding,  talve  down  in  short- 
hand all  the  testimony,  the  objections  made,  tlie 
rulings  of  the  court,  the  exceptions  taken,  and  oral 
instructions  given,  and  if  directed  by  the  court,  or 
requested  by  either  party,  shall  within  such  rea- 
sonable time  after  the  trial  of  such  case  as  the 
court  may  designate,  write  out  the  same  in  plain, 


109  PHONOGRAPHIC     REPORTERS.       §§  270,  271 

legible  long-hand,  and  verify  and  file  it  with  the 
Cleric  of  the  Court  in  Avhicli  the  ease  was  tried. 

§  270.  Xo  person  shall  be  appointed  to  the  posi- 
tion of  official  reporter  of  any  court  in  this  State, 
except  upon  satisfactory  evidence  of  good  moral 
character,  and  without  being  first  examined  as  to 
his  competency  by  at  least  three  members  of  the 
bar  practicing  in  said  court,  such  members  to  be 
designated  by  the  judge  or  judges  of  said  court. 
The  committee  of  members  of  tlie  bar  so  desig- 
nated shall,  upon  the  request  of  the  Judge  or 
judges  of  said  court,  examine  any  person  as  to  his 
qualifications  whom  said  Judge  or  judges  may 
wish  to  appoint  as  official  reporter;  and  no  person 
shall  be  appointed  to  such  position  upon  whose 
qualifications  such  committee  shall  not  have  re- 
ported favorably.  The  test  of  competency  before 
such  committee  shall  be  as  follows:  The  party  ex- 
amined must  Avrite  in  tlie  presence  of  said  commit- 
tee at  the  rate  of  at  least  one  hundred  and  fifty 
words  per  minute,  for  five  consecutive  minutes, 
upon  matter  not  previously  written  by  or  known 
to  him,  immediately  read  the  same  bacli  to  the 
committee,  and  transcribe  the  same  into  longhand 
writing,  plainly  and  with  accuracy.  If  he  pass 
such  test  satisfactorily,  the  committee  shall  fur- 
nish him  with  a  written  certificate  of  that  fact, 
signed  by  at  least  a  majority  of  the  members  of 
the  committee,  which  certificate  shall  be  filed 
among  the  records  of  the  court. 

§  271.  The  official  reporter  of  any  Superior 
Court  shall  attend  to  the  duties  of  his  office  in  per- 
son, except  when  excused  for  good  and  sufficient 
reason  by  order  of  the  court,  which  order  shall  be 
entered  upon  the  minutes  of  the  court.  Employ- 
ment in  his  professional  capacity  elsewhere  shall 
Code  Civ.  Proc— 10. 


|§  272-274  PHONOGRAPHIC    REPORTERS.  110 

not  be  deemed  a  good  and  sufficient  reason  for 
such  excuse.  When  the  official  reporter  of  any 
court  lias  been  excused  in  the  manner  provided  in 
this  section,  the  court  may  appoint  an  official  re- 
porter pro  tempore,  who  shall  perform  the  same 
duties  and  receive  the  same  compensation  during 
the  term  of  his  employment  as  the  official  reporter. 

§  272.  The  official  reporter  of  any  court,  or  offi- 
cial reporter  pro  tempore,  shall,  before  entering 
upon  the  duties  of  his  office,  talve  and  subscribe 
the  constitutional  oath  of  office. 

§  273.  The  report  of  the  official  reporter,  or  offi- 
cial reporter,  pro  tempore,  of  any  court,  duly  ap- 
pointed and  sworn,  when  written  out  in  long- 
hand writing,  and  certified  as  being  a  correct 
transcript  of  the  testimony  and  proceedings  in  the 
case,  shall  be,  prima  facie,  a  correct  statement  of 
such  testimony  and  proceedings. 

§  274.  The  official  reporter  shall  receive  as  com- 
pensation for  his  services  a  monthly  salary  to  be 
fixed  by  the  Judge  by  an  order  duly  entered  on  the 
minutes  of  the  Court,  which  salary  shall  be  paid 
out  of  the  treasury  of  the  county  in  the  same  man- 
ner and  at  the  same  time  as  the  salaries  of  county 
officers;  provided,  that  said  monthly  salary  for 
each  Superior  Court,  or  department  thereof,  shall 
not  exceed  the  following  maximum:  In  counties 
having  a  population  of  one  hundred  thousand  and 
over,  three  hundred  dollars;  in  counties  having  a 
population  less  than  one  hundred  thousand  and  ex- 
ceeding fifty  thousand,  two  hundred  and  seventy- 
five  dollars;  in  counties  having  a  population  less 
than  lifty  thousand  and  exceeding  thirty  thou- 
sand, two  hundred  and  fifty  dollars;  in  counties 
having  a  population  less  tlian  thirty  thousand  and 
('xceeding  twenty    thousand,    two    hundred    and 


Ill  PHONOGRAPHIC    REPORTERS.  §  274 

twenty-five  dollars;  in  counties  having  a  popula- 
tion less  than  tvventy  thousand  and  exceeding  fif- 
teen thousand,  two  hundred  dollars;  in  counties 
having  a  population  less  than  fifteen  thousand  and 
exceeding  twelve  thousand  five  hundred,  one  hun- 
dred and  seventy-five  dollars;  in  counties  having  a 
population  less  than  twelve  thousand  five  hundred 
and  exceeding  ten  thousand,  one  hundred  and  fifty 
dollars;  in  counties  having  a  population  less  than 
ten  thousand  and  exceeding  seven  thousand  five 
hundred,  one  hundred  and  twenty-five  dollars;  in 
counties  having  a  population  less  than  seven 
thousand  five  hundred  and  exceeding  five  thousand 
one  hundred  dollars;  and  in  counties  having  a  pop- 
ulation less  than  five  thousand,  seventy-five  dol- 
lars; and,  further  provided,  that  where  both  par- 
ties to  a  civil  action,  or  either,  require  the  testi- 
mony therein  to  be  written  out  in  full  as  the  trial 
progresses,  the  official  reporter  shall  be  allowed 
the  extra  expense  occasioned,  to  be  audited  by  the 
Judge,  and  paid  by  the  party  or  parties  ordering 
the  same;  provided  further,  that  in  departments 
of  Superior  Courts  devoted  exclusively  to  the  trial 
of  criminal  cases,  the  Judge  of  the  Court  shall,  in 
addition,  fix  and  allow  a  reasonable  compensation 
for  the  transcription  of  testimony,  to  be  paid  out 
of  the  county,  or  citj^  and  county,  treasury,  upon 
the  order  of  the  Judge.  In  civil  cases  in  which 
the  testimony  is  talvcn  down  by  the  official  report- 
er, each  party  shall  pay  a  per  diem  of  two  dollars 
and  fifty  cents  before  judgment  of  verdict  therein 
is  entered;  and  where  the  testimony  is  transcribed, 
the  party  or  parties  ordering  it  shall  pay  ten  cents 
per  folio  for  such  transcription  on  delivery  there- 
of; said  per  diem  and  transcription  fees  to  be  paid 
to  the  Clerk  of  the  Court,  and  by  him  paid  into 
the  treasury  of  the  county,  and  such  portion  as 
shall  be  paid  by  the  prevailing  party  may  be  taxed 


f?§  274,  27o  ATTORNEYS,   ETC.,   AT   LAW.  112 

as  costs  in  the  case.  Where  there  is  no  regular 
otficial  reporter,  and  one  is  appointed  temporarily 
hy  the  Court,  he  shall  receive  for  his  services  and 
expenses  of  attendance,  in  lieu  of  the  salary  pro- 
vided in  this  section,  such  compensation  as  the 
court  may  deem  reasonable;  to  he  paid,  if  a  civil 
case,  by  both  parties,  or  either  of  them,  as  the 
Judge  shall  direct;  and,  if  a  criminal  case,  to  be 
paid  out  of  the  treasury  of  the  county  on  the  order 
of  the  court.  [Amendment  approved  March  21, 
1885;  Stats.  1885.     In  etfect  March  23,  1885.] 

ClIAPTEll  I. 

ATTORNEYS  AND  COUNSELLORS  AT  LAW. 

§  275.  W^ho  may  be  admitted  as  attorneys. 

§  276.  Qualifications. 

§  277.  Certificate  of  admission  and  license. 

§  278.  Oath. 

§  279.  Attorneys   of   other   States. 

§  280.  Roll   of  attorneys. 

§  281.  Penalty  for  practicing  without  license. 

§  282.  Duties. 

§  283.  Authority. 

§    284.  Change  of  attorney.  ;  •    ■ 

§  285.  Notice  of  change. 

§  286.  Death  or  removal   of  attorney. 

§  287.  Removal  and  suspension. 

§  288.  Conviction   of  felony. 

§  289.  Proceedings  for  removal  or  suspension. 

§  290.  Accusation. 

§  291.  Verification. 

§  292.  Citation. 

§  293.  Appearance. 

§  294.  Objections   to   accusation. 

§  295.  Demurrer. 

H  297.  Trial. 

§  296.  Answer. 

§  298.  Reference  to  take  depositions. 

§  299.  Judgment. 

§  275.    Any  citizen  or  person  resident  of  this 
State,  who  has  bona  fide  declared  his  or  her  inteu- 


U3  ATTORNEYS,   ETC.,   AT  LAW.  §§  276,  277 

tion  to  become  a  citizen  in  the  manner  required 
by  law,  of  the  age  of  twenty-one  years,  of  good 
moral  character,  and  who  possesses  the  necessary 
qualilications  of  learning  and  ability,  is  entitled 
to  admission  as  attorney  and  counsellor  in  all  the 
courts  of  this  State.  All  persons  are  attorneys  of 
the  Supreme  Court  who  were  on  the  first  day  of 
January,  eighteen  hundred  and  eighty,  entitled  to 
practice  in  the  court  superseded  thereby. 

Admission  of  attorneys:  See  sections  following 
this. 

Judges  must  be  licensed  attorneys:  Sees.  156, 
157. 

Judicial  and  ministerial  officers,  not  to  practice: 
See  Polit.  Code,  sec.  4121;  sees.  171,  172,  ante. 

Removal  of  attorneys:    See  sec.  287. 

§  276.  Every  applicant  for  admission  as  an  at- 
torney and  counsellor  must  produce  satisfactory 
testimonials  of  a  good  moral  character  and  under- 
go a  strict  examination  in  open  court  as  to  his 
qualifications,  by  the  Justices  of  the  Supreme 
Court,  or  by  the  justices  sitting  and  holding  one 
of  the  departments  thereof,  or  by  not  less  than 
three  of  the  Supreme  Court  Commissioners,  to  be 
designated  and  appointed  by  the  Chief  Justice  of 
the  Supreme  Court  to  conduct  publicly  the  exami- 
nation, such  commissioners  to  report  the  results 
of  the  examination  to  the  Supreme  Court  for  final 
action.  [Amendment  approved  March  IG,  1895; 
Stats.  1895,  56.    In  effect  March  16,  1895.] 

Examination  of  candidate:  See  sec.  129;  Su- 
preme Court,  rule  1. 

§  277.  If,  upon  examination,  he  is  found  quali- 
fied, the  Supreme  Court,  or  department  thereof  be- 
fore which  he  is  examined,  shall  admit  him  as  an 
attorney  and  counsellor  in  all  the  courts  of  this 
State,  and  shall  direct  an  order  to  be  entered  to 


§§  278-281  ATTORNEYS,   ETC.,   AT   LAW.  114 

that  elTect  upon  its  records,  and  that  a  certificate 
of  such  record  be  given  to  him  by  the  Clerk  of  the 
Court,  which  certificate  shall  be  his  license. 
Disbarment:   See  sec.  287. 

§  278.  EA'ery  person,  on  his  admission,  must 
take  an  oath  to  support  the  Constitution  of  the 
United  States  and  the  Constitution  of  the  State  of 
California,  and  to  faithfully  discharge  the  duties  of 
an  attorney  and  counsellor  at  law  to  the  best  of 
his  kuoAvledge  and  ability.  A  certificate  of  such 
oath  must  be  indorsed  upon  the  license. 

Duties:   See  sec.  282. 

§  279.  Every  citizen  of  the  United  States,  or 
person  resident  of  this  State,  who  has,  bona  fide, 
declared  his  intention  to  become  a  citizen  in  the 
manner  required  by  law,  who  has  been  admitted 
to  practice  law  in  the  highest  court  of  a  sister 
State,  or  of  a  foreign  country,  where  the  common 
law  of  England  constitutes  the  basis  of  jurispru- 
dence, may  be  admitted  to  practice  in  the  courts 
of  this  State,  upon  the  production  of  his  or  her 
license,  and  satisfactory  evidence  of  good  moral 
character;  but  the  court  may  examine  the  appli- 
cant as  to  his  or  her  qualifications. 

"State"  and  "United  States,"  defined,  sec.  17, 
subd.  7. 

§  280.  Every  Clerk  shall  keep  a  roll  of  attor- 
neys and  counsellors  admitted  to  practice  by  the 
court  of  wliich  he  is  clerk,  which  roll  must  be 
signed  by  the  person  admitted  before  he  receives 
his  license. 

Attorneys  of  the  Supreme  Court,  sec.  275. 

ij  281.  If  any  person  shall  practice  law  in  any 
court,  except  a  justice's  court  or  police  court,  with- 
out having  received  a  license  at  attorney  and  coun- 
sellor, he  shall  be  guilty  of  a  contempt  of  court. 


315  ATTORNEYS,    ETC.,    AT    LAW.         §§  282,  283 

Contempt,  sec  1209  et  seq. 
Justices'  court  practitioners,  sec  9G. 

§  282.  It  is  the  duty  of  an  attorney  and  coun- 
sellor: 

1.  To  support  the  Constitution  and  laws  of  the 
I'nlted  States  and  of  this  State; 

2.  To  maintain  the  respect  due  to  the  courts  of 
justice  and  judicial  ofhcers; 

3.  To  counsel  or  maintain  such  actions,  pro- 
ceedings, or  defenses  only  as  appear  to  him  legal 
or  just,  except  the  defense  of  a  person  charged 
with  a  public  offense; 

4.  To  employ,  for  the  purpose  of  maintaining 
the  causes  confided  to  him,  such  means  only  as  are 
consistent  with  truth,  and  never  seelx  to  mislead 
the  judge  or  any  judicial  officer  by  an  artifice  or 
false  statement  of  fact  or  law; 

5.  To  maintain  inviolate  the  confidence,  and  at 
every  peril  to  himself,  to  preserve  the  secrets  of 
his  client; 

G.  To  abstain  from  all  offensive  personality,  and 
to  advance  no  fact  prejudicial  to  the  honor  or 
reputation  of  a  party  or  witness,  unless  required 
by  the  justice  of  the  cause  with  which  he  is 
charged ; 

7.  Not  to  encourage  either  the  commencement 
or  the  continuance  of  an  action  or  proceeding  from 
any  corrupt  motive  of  passion  or  interest; 

8.  Never  to  reject,  for  any  consideration  per- 
sonal to  liimself,  the  cause  of  the  defenseless  or 
the  oppressed. 

Subd.  1.    Oath,  sec.  278. 

Subd.  3.  Offender,  public— defense  of:  See  Penal 
Code,  sec.  987;  see  also,  subd.  8. 

§  283.  An  attorney  and  counsellor  shall  have 
aulliority: 

1.  To  bind  his  client  in  any  of  the  steps  of  an 
a(^tion  or  proceeding  by  his  agreement  filed  with 


§§  284-287  ATTORNEYS,  ETC.,  AT  LAW.  116 

the  Clerk,  or  entered  iipoii  tlie  minutes  of  the 
court,  and  not  otlierwise; 

2.  To  receive  money  claimed  by  his  client  in  an 
action  or  proceeding  during  the  pendency  thereof, 
or  after  judgment,  unless  a  revocation  of  his  au- 
thority is  tiled,  and  upon  the  payment  thereof,  and 
not  otherwise,  to  discharge  the  claim  or  acknowl- 
edge satisfaction  of  the  judgment. 

Frivileged  communications:    See  sec.  1881. 

§  2S4.  The  attorney  in  an  action  or  special  pro- 
ceeding may  be  changed  at  any  time  before  or  af- 
ter judgment  or  final  determination,  as  follows: 

1.  Upon  consent  of  both  client  and  attorney, 
filed  with  the  Clerk,  or  entered  upon  the  minutes; 

2.  Upon  the  order  of  the  court,  upon  the  appli- 
cation of  either  client  or  attorney,  after  notice 
from  one  to  the  other. 

Notice  of  substitution:    See  next  section. 

§  285.  When  an  attorney  is  changed,  as  pro- 
vided in  the  last  section,  written  notice  of  the 
change  and  of  the  substitution  of  a  new  attorney, 
or  of  the  appearance  of  the  party  in  person,  must 
be  given  to  the  adverse  party.  Until  then  he  must 
recognize  the  former  attorney. 

§  286.  When  an  attorney  dies,  or  is  removed  or 
suspended,  or  ceases  to  act  as  such,  a  party  to  an 
action,  for  whom  he  was  acting  as  attorney,  must 
before  any  further  proceedings  are  had  against 
him,  be  required  by  the  adverse  party,  by  written 
notice,  to  appoint  another  attorney  or  to  appear  in 
person. 

§  287.  An  attorney  and  counsellor  may  be  re- 
moved or  suspended  by  the  Supreme  Court,  or  any 
department  thereof,  or  by  any  Superior  Court  of 
the  State,  for  eitlier  of  the  following  causes,  aris- 
ing after  his  admission  to  practice: 

i.    His  conviction  of  a  felony  or  misdemeanor 


117  ATTORNEYS,   ETC.,   AT  LAW.  §§  288-290 

involving  moral  turpitude,  in  wliicli  case  the  rec- 
ord of  conviction  sliall  be  conclusive  evidence; 

2.  Willful  disobedience  or  violation  of  an  order 
of  the  court  requiring  him  to  do  or  forbear  an  act 
connected  with,  or  in  the  course  of  his  profession, 
M'hich  he  ought  in  good  faith  to  do  or  forbear,  and 
any  violation  of  the  oath  talvcn  by  him,  or  of  his 
duties  as  such  attorney  and  counsellor; 

3.  Corruptly  or  willfully  and  without  authority 
appearing  as  attorney  for  a  party  to  an  action  or 
proceeding; 

4.  Lending  his  name  to  be  used  as  attorney  and 
counsellor  by  another  person  who  is  not  an  attor- 
ney and  counsellor. 

In  all  cases  where  an  attorney  is  removed  or  sus- 
pended by  a  Superior  Court,  the  judgment  or  order 
of  removal  or  suspension  may  be  reviewed  on  ap- 
peal hy  the  Supreme  Court, 

Attorney  has  right  to  mal^e  a  defense:  See  sec. 
292. 

§  288.  In  case  of  the  conviction  of  an  attorney 
or  counsellor  of  a  felony  or  misdemeanor,  involv- 
ing moral  turpitude,  the  Cleric  of  the  court  in 
which  such  conviction  is  had  shall,  within  thirty 
days  thereafter,  transmit  to  the  Supreme  Court  a 
certified  copy  of  the  record  of  conviction, 

§  289.  The  proceedings  to  remove  or  suspend 
an  attorney  and  counsellor,  under  the  first  subdi- 
vision of  section  two  hundred  and  eighty-seven, 
must  be  taken  by  the  court  on  the  receipt  of  a  cer- 
tified copy  of  the  record  of  conviction.  The  pro- 
ceedings under  tlie  second,  third',  or  fourth  subdi- 
visions of  section  two  hundred  and  eighty-seven 
may  be  taken  by  the  court  for  the  matters  within 
its  knowledge,  or  may  be  taken  upon  the  informa- 
tion of  another. 

§  290.    If  the  proceedings  are  upon  the  infer- 


§§  291-297  ATTORNEYS,    ETC.,    AT   LAW.  118 

mation  of  auother,  the  accusation  must  be  iu  writ- 
ing. 

§  291.  The  accusation  must  state  the  matters 
charged  and  be  verified  by  the  oath  of  some  per- 
son to  the  efCect  that  the  cliarges  therein  contained 
are  true. 

§  292.  Upon  receiving  the  accusation,  the  court 
shall  make  an  order  requiring  the  accused  to  ap- 
pear and  answer  it  at  a  specified  time,  and  shall 
cause  a  copy  of  the  order  and  of  the  accusation  to 
be  served  upon  the  accused  at  least  five  days  be- 
fore the  day  appointed  in  the  order. 

§  293.  The  accused  must  appear  at  the  time  ap- 
pointed in  the  order  and  answer  the  accusations, 
unless  for  sulficient  cause  the  court  assign  an- 
other day  for  that  purpose.  If  he  do  not  appear, 
the  court  may  proceed  and  determine  the  accusa- 
tion in  his  absence. 

§  294.  The  accused  may  answer  to  the  accusa- 
tion either  by  objecting  to  its  sufficiency  or  deny- 
ing it. 

§  295.  If  he  object  to  the  sufficiency  of  the  ac- 
cusation, the  objection  must  be  in  writing,  but 
need  not  be  in  any  specific  form,  it  being  suffi- 
cient if  it  presents  intelligibly  the  grounds  of  the 
objection.  If  he  deny  the  accusation,  the  denial 
may  be  oral  and  without  oath,  and  must  be  en- 
tered upon  the  minutes. 

§  296.  If  an  objection  to  the  sufficiency  of  the 
accusation  be  not  sustained,  the  accused  must  an- 
swer \\'ithin  such  time  as  may  be  designated  by 
the  court. 

§  297.  If  the  accused  plead  guilty,  or  refuse  to 
answer  the  accusation,  the  court  shall  proceed  to 
judgment  of  removal  or  suspension.     If  he  deny 


119  OTHER    PERSONS    SO    INVESTED.     §§  298,  304 

the  matters  charged,  the  court  shall,  at  such  time 
as  it  may  appoint,  proceed  to  try  the  accusation. 

§  298.  The  court  may,  in  its  discretion,  order  a 
reference  to  a  committee  to  take  depositions  in 
the  matter. 

§  299.  Upon  conviction,  in  cases  arising  under 
the  first  subdivision  of  section  two  hundred  and 
eighty-seven,  the  judgment  of  the  court  must  be 
that  the  name  of  the  party  shall  be  stricken  from 
the  roll  of  attorneys  and  counsellors  of  the  court, 
and  that  he  be  precluded  from  practicing  as  such 
attorney  or  counsellor  in  all  the  courts  of  this 
State;  and  upon  conviction  in  cases  under  the 
other  subdivisions  of  that  section,  the  judgment 
of  the  court  may  be  according  to  the  gravity  of 
the  offense  charged;  deprivation  of  the  right  to 
practice  as  attorney  or  counsellor  in  the  courts  of 
this  State  permanently,  or  for  a  limited  period. 

CHAPTER  II. 

OTHER  PERSONS  INVESTED  WITH  SUCH  POWERS. 
§  304.    Receivers,  executors,  administrators,  and  guardians. 

§  304.  The  appointment,  powers,  and  duties  of 
receivers,  executors,  administrators,  and  guard- 
ians, are  provided  for  and  prescribed  in  parts  two 
and  three  of  this  Code. 

Receivers,  sees.  564-569. 

Executors  and  administrators,  sees.  1349-1440, 
1581-1591;  also,  sees.  1612-1658,  and  1726-1743. 

Guardians,  sees.  1747-1809. 

The  foregoing  section  ends  Part  I.,  which  was 
entirely  amended;  and  the  foregoing  Part  I. 
adopted  as  a  substitute  therefor,  by  act  approved 
April  1,  1880— Amendments  1880,  21  (Ban.  ed.  63); 
took  effect  immediately— repealed  all  acts  and 
parts  of  acts  in  conflict  therewith. 


PART   II. 

OF  CIVIL  ACTIONS. 


Title  I.    Form  of  Civil  Actions,  §§  307-309. 

II.    Time  of  Commenciug    Civil    Actions,   §§ 
312-3G2. 

III.  Parlies  to  Civil  Actions,  §§  3G7-389. 

IV.  Place  of  Trial  of  Civil  Actions,  §§  392-400, 
V.    Manner  of  Commencing  Suit,  §§  405-416. 

VI.    Pleadings  in  Civil  Actions,  §§  420-476. 
VII.    Provisional  Remedies  in  Civil  Actions,  §^ 

478-574. 
VIII.    Trial  and  Judgment  in  Civil  Actions,  §§ 
577-675. 
IX.    Execution  of  the  Judgment  in  Civil  Ac- 
tions, §§  081-721. 
X.    Actions  in  Particular  Cases,  §§  726-827. 
XI.    Proceedings  in  Justices'  Courts,    §§  832- 

925. 
XII.    Proceedings  in  Police  Courts,  §§  929-933. 

XIII.  Appeals  in  Civil  Actions,  §§  936-980. 

XIV.  Miscellaneous  Provisions,  §§  989-1058. 

TITLE  I. 

OF   THE   FORM   OF   CIVIL  ACTIONS. 

§  307.     One  form  of  civil  action  only. 

§  308.    Parties  to  actions,  how  designated. 

§  309.     Special  isues  not  made  by  pleadings,   how  tried. 

§  307.    There  is  in  this  State  but  one  form  of 
civil  actions  for  the  enforcement  or  protection  of 


121  TIME  OF  COMMENCING  ACTIONS.       §§  308,  312 

private  rights  and  tlie  redress  or  prevention   of 
private  wrongs. 

§  308.  In  siicli  action,  tlie  party  complaining  is 
Ivnown  as  ibe  plaintiff,  and  the  adverse  party  as 
the  defendant. 

§  309.  A  question  of  fact  not  put  in  issue  by 
the  pleadings  may  be  tried  by  a  jury,  upon  an  or- 
der for  the  trial,  stating  distinctly  and  plainly  the 
question  of  fact  to  be  tried;  and  such  order  is  the 
only  authority  necessary  for  a  trial. 

Equity  cases,  issues  in,  sec.  592. 

TITLE  II. 

OP    THE    TIME    OF    COMMENCING    ACTIONS. 

Chapter  I.    The  time  of  commencing    actions    in 
general,  §  312. 
II.    The  time  of  commencing  actions  for 
the  recovery  of  real  property,  §§  315- 
328. 

III.  The  time  of  commencing  actions  other 

than  for  the  recovery  of  real  prop- 
erty, §§  335-345. 

IV.  General  provisions  as  to  the  time  of 

commencing  actions,  §§  350-362. 

CHAPTER  I. 

THE   TIME    OF   COMMENCING   ACTIONS   IN   GENERAL. 

§  312.     Commencement  of  civil  actions. 

S  312.    Civil  actions,  without  exception,  can  only 
be  commenced   within  the  periods  prescribed   in 
this  title,  after  the  cause  of  action  shall  have  ac- 
crued, unless  where,  in  special  cases,  a  different 
Code  Civ.   Proc— 11. 


§  315  TIME   OP  COMMENCING  ACTIONS.  122 

limitatiou  is  prescribed  by    statute.       [Approved 
February  21,  1897;  Stats.  1897,  e.  21.] 

On  a  current  account,  the  cause  accrues  from 
time  of  last  item:    Sec.  344. 


CHAPTER  II. 

THE   TIME   OF  COMMENCING  ACTIONS    FOR  THE   RE- 
COVERY  OF   REAL   PROPERTY. 

§  315.    When  the  people  will  not  sue. 

§  316.  When  action  cannot  be  brought  by  grantee  from  the 
State. 

§  317.  When  actions  by  the  people  or  their  grantees  are  to 
be  brought  within  five  years. 

§  318.  Seizin  within  five  years,  when  necessary  in  action 
for   real    property. 

§  319.  Such  seizin,  when  necessary  In  action  or  defense 
arising  out  of  title  to  or  rents  of  real  property. 

§  320.     Entry  on  real  estate. 

§  321.  Possession,  when  presumed.  Occupation  deemed  un- 
der legal  title,  unless  adverse. 

§  322.  Occupation  under  written  instrument  or  judgment, 
when  deemed  adverse. 

§  323.  What  constitutes  adverse  possession  under  written 
instrument  or  judgment. 

§  324.  Premises  actually  occupied  under  claim  of  title 
deemed  to  be  held  adversely. 

§  325.  What  constitutes  adverse  possession  under  claim  of 
title  not  written. 

§  326.  Relation  of  landlord  and  tenant,  as  affecting  adverse 
possession. 

§  327.    Right  of  possession  not  affected  by  descent  cast. 

§  328.  Certain  disabilities  excluded  from  time  to  com- 
mence actions. 

§  315.  The  people  of  this  State  will  not  sue  any 
person  for  or  in  respect  to  any  real  property,  or 
the  issues  or  profits  thereof,  by  reason  of  the  right 
or  title  of  the  ])eople  to  the  same,  unless: 

1.  Such  ri.ijht  or  title  shall  have  accrued  with- 
in ten  years  before  any  action  or  other  proceeding 
for  the  same  is  commenced;  or, 

2.  The  people,  or  those  from  whom  they  claim, 
slinll  have  received  the  rents  and  profits  of  such 


123  TIME  OF  COMMENCING  ACTIONS.       §§  316-319 

real  property,  or  of  some  part  thereof,  within  the 
space  of  ten  years. 
Title  by  occupancy:  Civ.  Code,  sec.  1007. 

§  316.  No  action  can  be  brought  for  or  in  re- 
spect to  real  property  by  any  person  claiming  un- 
der letters  patent  or  grants  from  this  State,  un- 
less the  same  might  have  been  commenced  by  the 
people  as  herein  specified,  in  case  such  patent  had 
not  been  issued  or  grant  made. 

§  317.  When  letters  patent  or  grants  of  real 
property  issued  or  made  by  the  people  of  this 
State  are  declared  void  by  the  determination  of  a 
competent  court,  an  action  for  the  recovery  of 
the  property  so  conveyed  may  be  brought,  either 
by  the  people  of  the  State,  or  by  any  subsequent 
patentee  or  grantee  of  the  property,  his  heirs  or 
assigns,  within  five  years  after  such  determina- 
tion, but  not  after  that  period.  [In  effect  July  1, 
1874.] 

§  318.  No  action  for  the  recovery  of  real  prop- 
erty, or  for  the  recovery  of  the  possession  thereof, 
can  be  maintained,  unless  it  appear  that  the  plain- 
tiff, his  ancestor,  predecessor,  or  grantor,  was 
seized  or  possessed  of  the  property  in  question, 
Avithin  five  years  before  the  commencement  of  the 
action. 

Adverse  possession:    Sec.  321,  infra. 

Trespass  upon  real  property,  action  for,  must  be 
brought  v.ithin  three  years:    Sec.  338,  post. 

Possession,  presumptive  evidence  of  ownership: 
See  sec.  1963,  subd.  11. 

Action  includes  a  special  proceeding  of  a  civil 
nature:   Sec.  363,  post. 

§  319.  No  cause  of  action,  or  defense  to  an  ac- 
tion, arising  out  of  the  title  to  real  property,  or  to 


§§  320-322       TIME  OF  COMMENCING  ACTIONS.  124 

rents  or  profits  out  of  the  same,  can  be  effectual, 
unless  it  appear  that  the  person  i)rosecutiug  the 
action,  or  making-  the  defense,  or  under  whose 
title  the  action  is  prosecuted  or  tlie  defense  is 
made,  or  the  ancestor,  predecessor  or  grantor  of 
such  person,  Avas  seized  or  possessed  of  tlie  prem- 
ises in  question  witliin  live  years  before  the  com- 
mencement of  the  act  in  respct  to  which  such  ac- 
tion is  prosecuted  or  defense  made. 

Action  includes  a  special  proceeding  of  a  civil 
nature:    Sec.  3Go, 

§  320,  No  entry  upon  real  estate  is  deemed  suf- 
ficient or  valid  as  a  claim,  unless  an  action  be 
commenced  thereupon  within  one  year  after  mak- 
ing such  entry,  and  Avitliin  live  years  from  the 
time  when  the  right  to  make  it  descended  or  ac- 
crued. 

§  321.  In  every  action  for  the  recovery  of  real 
property,  or  the  possession  thereof,  the  person  es- 
tablishing a  legal  title  to  the  property  is  pre- 
smned  to  have  been  possessed  thereof  within  the 
time  required  by  laAv,  and  the  occupation  of  the 
property  by  any  other  person  is  deemed  to  have 
been  under  and  in  subordination  to  the  legal  title, 
unless  it  appear  that  the  property  has  been  held 
and  possessed  adversely  to  such  legal  title,  for  five 
years  before  the  commencement  of  the  action. 

Adverse  possession:  Sees.  322-325. 

Forcible  entry,  one  year:    Sec.  1172. 

Payment  of  taxes:   See  sec.  325.  infra, 

§  322,  AVlien  it  appears  that  tlie  occupant  or 
those  under  whom  he  claims,  entered  into  the  pos- 
session of  the  property  under  claim  of  title,  exclu- 
sive of  other  rigln,  founding  such  claim  upon  a 
written  iustninu>nt,  as  being  a  conveyance  of  the 


125  TIME    OF    COMMENCING   ACTIONS.     §§  323,  324 

propertj-  in  question,  or  upon  the  decree  or  judg- 
ment of  a  competent  court,  and  that  there  has 
been  a  continued  occupation  and  possession  of  the 
property  included  in  such  instrument,  decree,  or 
judgment,  or  of  some  part  of  the  property,  under 
such  claim,  for  five  years,  the  property  so  included 
is  deemed  to  have  been  held  adversely,  except  that 
when  it  consists  of  a  tract  divided  into  lots,  the 
possession  of  one  lot  is  not  deemed  a  possession 
of  any  other  lot  of  the  same  tract. 

Entry  not  under  written  instrument:  See  sec. 
325. 

§  323.  For  the  purpose  of  constituting  an  ad- 
verse possession  by  any  person  claiming  a  title 
founded  upon  a  written  instrument,  or  a  judgment 
or  decree,  land  is  deemed  to  have  been  possessed 
and  occupied  in  the  following  cases: 

1.  Wliere  it  has  been  usually  cultivated  or  im- 
proved ; 

2.  Where  it  has  been  protected  by  a  substantial 
inclosure; 

o.  AVhere,  although  not  inclosed,  it  has  been 
used  for  the  supply  of  fuel,  or  of  fencing  timber 
for  the  purposes  of  husbandry,  or  for  pasturage, 
or  for  Ihe  ordinary  use  of  the  occupant; 

4.  AVhere  a  icnown  farm  or  single  lot  has  been 
partly  improved,  the  portion  of  such  farm  or  lot 
tliat  may  have  been  left  not  cleared,  or  not  in- 
closed accoi-ding  to  the  usual  course  and  custom  of 
the  adjoining  countiy,  shall  be  deemed  to  have 
been  occupied  for  the  same  length  of  time  as  the 
part  improved  and  cultivated. 

§  324.  AVhere  it  appears  that  there  has  been  an 
actual,  continued  occupation  of  land,  under  a 
claim  of  title,  exclusive  of  any  other  riglit,  but 
not  founded  upon  a  written  instrument,  judgment^ 


§§  325,  326   TIME    OF   COMMENCING   ACTIONS.  126 

or  decree,  the  land  so  actually  occupied,  and  no 
other,  is  deemed  to  have  been  held  adversely. 
Prescription,  title  by  Civ.  Code,  sec.  1007. 

§  325.  For  the  purpose  of  constituting  an  ad- 
verse possession  by  a  person  claiming  title,  not 
founded  upon  a  written  instrument,  judgment,  or 
decree,  land  is  deemed  to  have  been  possessed  and 
oeoiipied  in  the  following  cases  only: 

1.  Where  it  has  been  protected  by  a  substantial 
inclosure; 

2.  Where  it  has  been  usually  cultivated  or  im- 
proved. 

Provided,  however,  that  in  no  case  shall  adverse 
pt)ssessiou  be  considered  established  under  the 
provision  of  any  section  or  sections  of  this  Code, 
unless  it  shall  be  shown  that  the  land  has  been 
occupied  and  claimed  for  the  period  of  five  years 
continuously,  and  the  party  or  persons,  their  pre- 
decessors and  grantors,  have  paid  all  the  taxes. 
Slate,  county,  or  municipal,  which  have  been  lev- 
ied, and  assessed  upon  such  land.  [Amendment 
approved  April  1,  1878;  Amendments  1878-9,  99. 
In  effect  sixty  days  after  passage.] 

S  326.  When  the  relation  of  landlord  and  ten- 
ant has  existed  between  any  persons,  the  .posses- 
V,  sion  of  the  tenant  is  deemed  the  possession  of 
the  landlord  until  the  expiration  of  five  years 
from  the  termination  of  the  tenancy,  or 
Avhere  there  has  been  no  written  lease,  until  the 
expiration  of  five  years  from  the  time  of  the  last 
payment  of  rent,  notwithstanding  that  such  tenant 
may  have  acquired  another  title,  or  may  hav<^ 
claimed  to  hold  adversely  to  his  landlord.  Bui 
such  presumption  cannot  be  maae  after  the  pe- 
riods herein  limited. 

Tenant  denying  landlord's  title:  Sec.  1962, 
subd.  4. 


127  TIME    OF    COMMENCING   ACTIONS.    §§  327,  328 

§  327.  The  right  of  ;i  persoii  to  the  possession 
of  real  properly  is  uot  impaired  or  affected  by  a 
descent  cast  in  consequence  of  tlie  deatli  of  a  per- 
son in  i)Ossessiou  of  such  property. 

§  328.  If  a  person  entitled  to  commence  an  ac- 
ii"U  for  the  recovery  of  real  property,  or  for  Iho 
recovery  of  the  possession  thereof,  or  to  make  any 
entry  or  defense  founded  on  the  title  to  real  proj)- 
erty,  or  to  rents  or  services  out  of  the  same,  be,  at 
the  time  such  title  first  descends  or  accrues,  either: 

1.  Within  the  age  of  majority;  or, 

2.  Insane;  or, 

8.  Imprisoned  on  a  criminal  charge,  or  in  ext?- 
cntioii  upon  conviction  of  a  criminal  offense,  for  a 
term  less  than  for  life;  or, 

4.  A  married  woman,  and  her  husband  be  a 
necessary  party  v^ith  her  in  commencing  such  ac- 
tion or  mailing  such  entry  or  defense. 
.  The  time  during  which  such  disability  continues 
is  not  deemed  any  portion  of  the  time  in  this  chap- 
ter limited  for  the  commencement  of  such  action, 
or  the  making  of  such  entry  or  defense,  but  such 
action  maj^  be  commenced,  or  entry  or  defense 
made,  within  the  period  of  five  years  after  such 
disability  shall  cease,  or  after  the  death  of  the 
person  entitled  who  shall  die  under  such  disabil- 
ity; but  such  action  shall  not  be  commenced,  or 
entry  or  defense  made,  after  that  period. 

8ee  post,  sec.  354. 

Absence  from  State:   See  post,  sec  351. 

Successive  disabilities:   See  post,  sec.  358. 


§§  335-337        TIME   OF  COMMENCING  ACTIONS. 


CHAPTER  111. 

THE   TIME   OP   COMMENCING   ACTIONS   OTHER   THAN 
FOR  THE    RECOVERY  OF   REAL  PROPERTY. 

§  335.  Periods  of  limitation  prescribed. 

§  336.  Within   five   years. 

§  337.  Witliin   four  years. 

§  338.  Within   three   years. 

§  339.  Within   two  years. 

§  340.  Within  one  year. 

§  341.  Within  six  months. 

§  342.  Same. 

§  343.  Actions   for   relief  not   hereinbefore  provided  for. 

§  344.  Where  cause  of  action  accrues  on  mutual  account. 

§  345.  Actions  by  the   people  subject  to   the   limitations   of 

this   chapter. 

§  346.  Action   to   redeem   mortgage. 

§  347.  Same,  when  some  of  mortgagors  are  not  entitled  to 

redeem. 

§  348.  No   limitations  where  money  deposited   in   bank. 

§  335.  Tlie  periods  prescribed  for  tlie  'Com- 
mencement of  actions  other  tlian  for  tlie  recove^*y 
of  real  property,  are  as  follows: 

§  336.    Within  live  years: 

1.  An  action  upon  a  judgment  or  decree  of  any 
court  of  the  United  States,  or  of  any  State  with' a 
the  United  States; 

2.  An  action  for  mesne  profits  of  real  property. 
[Amendment  approved  March  24,  1874;  AiiK^nd- 
meuts  1873-4,  291.     In  effect  July  1,  1874.] 

Foreign  liability:  Sec.  361. 

S  337.    Within  four  years: 

An  action  upon  any  contract,  obligation,  or  lia- 
bility, founded  upon  an  instrument  in  writing  e?Cv> 
cuted  in  this  State,  f  Amendment  approved  March 
24,  1874;  Amendments  1873-4,  291.  In  effect  July 
1,  1874.] 

Four  years—limitation  where  no  other  provision: 
Sec.  343. 


129  TIME    OP   COMMENCING   ACTIONS.     §§  338,  339 

Absence  of  mortgagor  from  State:   Sec.  361,  post. 
Undertakings  on  appeal:   See  post,  sec.  941. 

15  338.    Within  three  years: 

1.  An  action  upon  a  liability  created  by  statute 
other  than  a  penalty-  or  forfeiture; 

2.  An  action  for  trespass  upon  real  property; 

3.  An  action  for  talcing,  detaining,  or  injuring 
any  goods  or  chattels,  including  actions  for  the 
specific  recoverj^  of  personal  propertj^; 

4.  An  action  for  relief  on  the  ground  of  frnud 
or  mistake.  The  cause  of  action  in  such  case  not 
to  be  deemed  to  have  accrued  until  the  discovery, 
hy  the  aggrieved  party,  of  the  facts  constituting 
the  frnud  or  mistake. 

Statutory  penalty:  See  sec.  340,  subd.  1. 

Executor  or  administrator. — Limitation  of  ac- 
tions to  set  aside  sale,  three  years:  Sees.  1573, 
1589,  post. 

Corporations  and  stockholders,  limitation  as  re- 
gards them:    See  post,  sec.  359. 

§  339.    Within  two  years: 

1.  An  action  upon  a  contract,  obligation,  or  lia 
bility,  not  founded  upon  an  instrument  of  writing, 
or  founded  upon  an  instrument  of  writing  exe- 
cuted out  of  tlie  State; 

2.  An  action  against  a  sheriff,  coroner,  or  con- 
stable, upou  a  liability  incurred  by  the  doing  of  an 
act  in  his  ofHcial  capacity,  and  in  virtue  of  his  of- 
fice, or  by  the  omission  of  an  otficial  duty,  includ- 
ing the  nonpayment  of  monej-  collected  upon  an 
execuiion.  F.ut  this  subdivision  does  not  apply  to 
an  action  for  an  escape; 

3.  An  action  to  recover  damages  for  the  death 
of  one  caused  by  the  wrongful  act  or  neglect  of 
another.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  291.    In  effect  July  1st,  1874.] 


§§  340,  341    TIME    OF   COMMENCING   ACTIONS.  130 

Mutual  account:   See  post,  sec.  344. 

Actions  for  escape:   See  infra,  sec.  340,  subd.  4. 

§  340.    Within  one  year: 

1.  An  action  upon  a  statute  for  a  penalty  or 
forfeiture,  when  the  action  is  given  to  an  individ- 
ual, or  to  an  individual  and  the  State,  except  when 
the  statute  imposing  it  prescribes  a  different  lim- 
itation; 

2.  An  action  upon  a  statute,  or  upon  an  under- 
taliing  in  a  criminal  action,  for  a  forfeiture  or 
penalty  to  tiie  people  of  the  State; 

3.  An  action  for  libel,  slander,  assault,  battery, 
false  imprisonment  or  seduction; 

4.  An  action  against  a  sheriff  or  other  officer 
for  the  escape  of  a  prisoner  arrested  or  imprisoned 
on  civil  process; 

5.  An  action  against  a  municipal  corporation 
for  damages  or  injuries  to  property  caused  by  a 
mob  or  riot.  [Amendment  approved  January  27, 
1876;  Amendments  1875-6,  89.  In  effect  January 
27,  1876.] 

One  year— forcible  entrj^  adverse  holding,  sec. 
1172;  against  decedent's  representatives,  sec.  353; 
after  reversal  on  appeal,  sec.  355;  entry  upon  real 
property,  sec.  320. 

§  341.  Within  six  months: 
An  action  against  an  officer,  or  officer  de  facto: 
1.  To  recover  any  goods,  wares,  merchandise,  or 
other  property,  seized  by  any  such  officer  in  his 
official  capacity  as  tax  collector,  or  to  recover  the 
price  or  value  of  any  goods,  wares,  merchandise, 
or  other  personal  property  so  seized,  or  for  dam- 
ages for  the  seizure,  detention,  sale  of,  or  injury 
to  any  goods,  wares,  merchandise,  or  other  per- 
sonal property  seized,  or  for  damages  done  to  any 
person  or  property  in  malting  any  such  seizure; 


131  TIME    OF    COMMENCING    ACTIONS.     §§  342-346 

2.  To  recover  stock  sold  for  a  delinquent  assess- 
ment, as  provided  in  sec.  347  of  the  Civil  Code. 
[Amendment  approved  March  24,  1874;  Amend- 
ments, 1873-4.  292.    In  effect  July  1,  1874.] 

Stoclv  sold  for  assessment— Civ.  Code,  sec.  347. 

Six  months— against  count5%  sec.  342;  by  dece- 
dent's representatives,  sec.  353. 

§  342.  Actions  on  claims  against  a  county, 
which  have  been  rejected  by  the  board  of  super- 
visors, must  be  commenced  within  six  months  af- 
ter the  first  rejection  thereof  by  such  board. 

Action  for  riot:  See  sec.  340,  subd.  5,  supra. 

§  343.  An  action  for  relief  not  hereinbefore  pro- 
vided for,  must  be  commenced  within  four  years 
after  the  cause  of  action  shall  have  accrued. 

Bank  deposits,  no  limitation:  Sec.  348. 

§  344.  In  an  action  brought  to  recover  a  bal- 
ance due  upon  a  mutual,  open,  and  current  ac- 
<:ount,  where  there  have  been  reciprocal  demands 
between  the  parties,  the  cause  of  action  is  deemed 
to  have  accrued  from  the  time  of  the  last  item 
proved  in  the  account  on  either  side, 

§  345.  The  limitations  prescribed  in  this  chap- 
ter apply  to  actions  brought  in  the  name  of  the 
State,  or  for  the  benefit  of  the  State,  in  the  same 
manner  as  to  actions  by  private  parties. 

Action  by  people:  Sec.  315. 

§  346.  An  action  to  redeem  a  mortgage  of  real 
property  with  or  without  an  account  of  rents  and 
profits,  may  be  brought  by  the  mortgagor,  or  those 
claiming  under  him,  against  the  mortgagee  in  pos- 
session, or  those  claiming  under  him,  unless  he  or 
tliey  have  continuously  maintained  an  adverse  pos- 


§§  347,  348    TIME    OF   COMMENCING   ACTIONS.  132 

session  of  the  morli,^aged  premises  for  five  years 
after  breach  of  some  condition  of  the  mortgage. 

"Action"  iuclndes  a  special  proceeding  of  a  civil 
nature:  Sec.  363. 

§  347.  If  there  is  more  than  one  sncli  mortgagor, 
or  more  than  one  person  claiming  under  a  mortga- 
gor, some  of  whom  are  not  entitled  to  maintain 
such  an  action,  under  the  provisions  of  this  chapter, 
anyone  of  them,  who  is  entitled  to  maintain  such  an 
action,  may  redeem  therein  a  divided  or  undivided 
part  of  the  mortgaged  premises,  according  as  his  • 
interest  may  appear,  and  have  an  accounting  for 
a  part  of  the  rents  and  profits,  proportionate  to  his 
interest  in  the  mortgaged  premises,  on  payment 
of  a  part  of  the  mortgage  money,  bearing  the  same 
proportion  to  the  whole  of  such  money  as  the 
value  of  his  divided  or  undivided  interest  in  the 
premises  bears  to  the  whole  of  such  premises. 

S  348.  To  actions  brought  to  recover  money  or 
other  property  deposited  with  any  bank,  banlvcr, 
trust  company,  or  savings  and  loan  society,  there 
is  no  limitation.  [New  section  approved  March 
24,  1874;  Amendments  1873-4,  p.  293.  In  effect 
July  1st,  1874.  J 

See  sec.  359,  post. 

No  limitation  of  action  for  money  deposited  wiTli 
banlcer:  See  post,  Appendix,  p.  874,  Stat. 

Lost  certificates  of  deposit,  statute  relating  to 
actions  on:  See  post.  Appendix,  p.  874,  Stats. 


133  TIME   OF  COMMENCING  ACTIONS.       §§  350-352 


CHAPTER  IV. 

GENERAL    PROVISIONS    AS    TO    THE    TIME    OF    COM- 
MENCING  ACTIONS. 

§  350.  When  an  action  is  commenced. 

§  351.  Exception,   where  defendant  is  out  of  the   State. 

§  352.  Exception  as  to  persons  under  disabilities. 

§  353.  Provision  where  person  entitled  dies  before  limita- 
tion   expires. 

§  354.  In  suits  by  aliens,  time  of  war  to  be  deducted. 

§  355.  Provision  where  judgment  has  been  reversed. 

§  356.  Provision  where  action  is  stayed  by  injunction. 

§  357.  Disability  must  exist  when   right  of  action  accrued. 

§  358.  When  two  or  more  disabilities  exist,   etc. 

§  359.  This  title  not  applicable  to  actions  against  directors, 
etc.     Limitations   in   such   cases   prescribed. 

§  360.  Acknowledgment  or  new  promise  must  be  in  writing. 

§  361.  Limitation  laws  of  other  States,   effect  of. 

§  362.  Existing  causes  of  action  not  affected. 

§  363.  "Action"    includes  a  special   proceeding. 

§  350.    An  action  is  commenced,     within     the 
meaning-  of  this  title,  when  the  complaint  is  filed. 
Stats.  1850,  p.  343. 

§  351.  If,  when  the  cause  of  action  accrues 
against  a  person,  he  is  out  of  the  State,  the  ac- 
tion may  be  commenced  within  tiie  term  herein 
limited,  after  liis  return  to  the  State,  and  if,  after 
the  cause  of  action  accrues,  he  departs  from  the 
State,  the  time  of  his  absence  is  not  part  of  the 
time  limited  for  the  commencement  of  the  action. 

§  352.    If  a  person  entitled  to  bring  an  action, 
j   mentioned  in  chapter  tliree  of  this  title,  be  at  the 
time  the  cause  of  action  accrued,  either — 

1.  Within  the  age  of  majority;  or, 

2.  Insane;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execu- 
tion under  the  sentence  of  a  criminal  court  for  a 
term  less  than  for  life;  or, 

Code  Civ.   Proc— 12 


|§  353-355      TIME  OP  COMMENCING  ACTIONS.  134 

4.  A  married  woman,  and  her  husband  be  a 
necessary  party  with  her  in  commencing  such  ac- 
tion; 

The  time  of  such  disability  is  not  a  part  of  the 
time  limited  for  the  commencement  of  the  action. 

Stats.  1863,  p.  325. 

Disabilities  stopping  running  of  statute:  See 
•ante,  sec.  328. 

§  353.  If  a  person  entitled  to  bring  an  action 
die  before  the  expiration  of  the  time  limited  for 
the  commencement  thereof,  and  the  cause  of  ac- 
tion survive,  an  action  may  be  commenced  by  his 
representatives,  after  the  expiration  of  that  time, 
and  within  six  months  from  his  death.  If  a  per- 
son against  whom  an  action  may  be  brought,  die 
before  the  expiration  of  the  time  limited  for  the 
commencement  thereof,  and  the  cause  of  action 
survive,  an  action  may  be  commenced  against  his 
representatives  after  the  expiration  of  that  time, 
and  within  one  year  after  tlie  issuing  of  letters 
testamentary  or  of  administration. 

Stats.  1850,  p.  343. 

Substitution  of  parties:  Sec.  385. 

Survival  of  actions:  See  post,  sees.  1582-1584, 
aud  sec.  385. 

"Action"  includes  a  special  proceeding  of  a  civil 
nature:  Sec.  303. 

§  354.  AYhen  a  person  is  an  alien  subject,  or 
citizen  of  a  country  at  war  with  the  United  States, 
the  time  of  the  continuance  of  the  war  is  not  part 
of  the  period  limited  for  the  commencement  of  the 
action. 

§  355.  If  an  action  is  commenced  within  the 
rime  prescribed  therefor,  and  a  .iudgment  therein 
for  the  plaintiff  be  reversed  on  appeal,  the  plain- 


135  TIME    OF    COMMENCING    ACTIONS.     §§  356-361 

tiff,  or  if  he  die  and  the  cause  of  action  survive,  his 
representatives,  may  commence  a  new  action  with- 
in one  year  after  the  reversal. 

This  and  the  six  following  sections  are  drawn 
from  statutes  of  1850,  page  343. 

§  356.  When  the  commencement  of  an  action 
is  stayed  by  injunction  or  statutory  prohibition,  the 
time  of  the  continuance  of  the  injunction  or  pro- 
hibition is  not  part  of  the  time  limited  for  the 
commencement  of  the  action. 

§  357.  No  person  can  avail  himself  of  a  disabil- 
ity, unless  it  existed  when  his  right  of  action  ac- 
crued. 

Successive  disabilities:  See  infra,  sec.  358,  and 
ante,  sec.  328. 

§  358.  When  two  or  more  disabilities  coexist 
at  the  time  the  rigiit  of  action  accrues,  the  limita- 
tion does  not  attach  until  they  are  removed. 

See  supra,  sec.  357. 

§  359.  This  title  does  not  affect  actions  against 
directors  or  stoclvholders  of  a  corporation,  to  re- 
cover a  penalty  or  forfeiture  imposed,  or  to  en- 
force a  liability  created  by  law;  but  such  actions 
must  be  brought  Avithin  three  years  after  the  .dis- 
covery by  the  aggrieved  party  of  the  facts  upon 
which  the  penalty  'u-  forfeiture  attached,  or  the 
liability  was  created. 

§  360.  No  acknowledgment  or  promise  is  suffi- 
cient evidence  of  a  new  or  continuing  contract, 
by  which  to  take  the  case  out  of  the  operation  of 
this  title,  unless  the  same  is  contained  in  some 
writing,  signed  by  the  party  to  be  charged  thereby. 

§  361.  When  a  cause  of  action  has  arisen  in  an- 
other State,  or  in  a  foreign  country,  and  by  the  laws 


§§  362,  363     TIME    OF   COMMENCING   ACTIONS.  136 

thereof  an  action  thereon  cannot  there  be  main- 
tained against  a  person  by  reason  of  the  lapse  of 
time,  an  action  thereon  sliall  not  be  maintained 
against  him  in  this  State,  except  in  favor  of  one 
wlio  has  been  a  citizen  of  tliis  State,  and  wlio  has 
held  the  cause  of  action  from  the  time  it  ac- 
crued. 
Stats.  1852,  p.  1(31. 

§  362.  This  title  does  not  extend  to  actions  al- 
ready commenced,  nor  to  cases  where  the  time  pre- 
scribed in  any  existing  statute  for  acquiring  a 
right  or  barring  a  remedy  has  fully  run,  but  the 
laws  now  in  force  are  applicable  to  such  actions 
and  cases,  and  are  repealed  subject  to  the  pro- 
visions of  this  section. 

Repeal  of  limitations:  See  sees.  9,  18. 

§  363.    The  word  '•action."  as  used  in  this  title, 
is  to  be  construed,  Avhenever  it  is  necessary  so  to    _ 
do,  as  including  a  special  proceeding  of  a  civil  na-    1 
ture. 


137  PARTIES  TO  CIVIL  ACTIONS.  §  367 

TITLE   III. 

OF   THE   PARTIES    TO    CIVIL   ACTIONS. 

§  367.    Action  to  be  in  name  of  party  in  interest. 

§  368.    Assignment  of  thing  in  action  not  to  prejudice   de- 
fense. 

§  369.     Executor,     trustee,    etc.,    may    sue    without    joining 
the  persons  beneficially  interested. 

§  370.     When  a  married  woman  is  a  party— actions  by  and 
against. 

§  371.     Wife  may  defend,    when. 

§  372.     Infant  to  appear  by  guardian. 

§  373.     Guardian,  how  appointed. 

§  374.     Unmaried  female  may  sue,   for  her  own  seduction. 

§  375.     Father,  etc.,  may  sue,  for  seduction  of  daughter,  etc. 

§  37 J.     Father,  etc.,  may  sue,  for  injury  or  death  of  child. 

§  377.     When    representatives    may    sue    for    death    of    one 
caused  by  the  wrongful  act  of  another. 

§  378.     Who  may  be  joined  as  plaintiffs. 

§  379.     Who  may  be  joined  as  defendants. 

§  380.     Parties  defendant  in  an  action  to  determine  conflict- 
ing claims  to  real   property. 
Parties  holding  title  under  a  common   soifrce,    when 

may  join. 
Parties    in   interest,    when   to   be   joined.     When   one 

or  more  may  sue  or  defend  for  the  whole. 
Plaintiff  may  sue  in  one  action  th-e  different  parties 

to    commercial   paper. 
Tenants   in  common,   etc.,   may  sever  in  bringing  or 

defending    actions. 
Action,    when    not   to   abate   by   death,    marriage,    or 

other  disability.     Proceedings  in  such  case. 
Another  person   may  be  substituted  for  the   defend- 
ant. 

§  387.     Intervention,  when  it  takes  place  and  how  made. 

§  388.     Associates  may  be  sued  by  name  of  association. 

§  389.     When  other  parties  must  be  brought  in. 

§  390.     Actions  against  fire  departments. 

J  §  367.  Every  action  must  be  prosecuted  in  the 
name  of  the  real  party  iii  interest,  except  as  pro- 
vided in  section  three  hundred  and  sixty-nine  of 
this  Code.  [.Vmendment  approved  April  15,  1880; 
Amendments  1880,  p.  Go.     In  effect  April  15,  1880.] 

Assiji-nees:  Sec.  3G8. 

Partnerships,  how  may  sue:  See  infra,  sec.  388. 


§§  368-370  PARTIES   TO   CIVIL   ACTIONS.  138 

Parties  plaintiff,  generally.— All  persons  inter- 
ested may  be  joined:  Sec.  378,  post.  If  any  refuse, 
they  may  be  made  defendants:  See.  382. 

§  368.  In  the  case  of  an  assignment  of  a  thing 
in  action,  the  action  by  the  assignee  is  without 
prejudice  to  any  setoff  or  other  defense  existing  at 
the  time  of,  or  before,  notice  of  the  assignment; 
but  this  section  does  not  apply  to  a  negotiable 
promissory  note  or  bill  of  exchange,  transferred  in 
good  faith  and  upon  good  consideration,  befor*^ 
maturity. 

Assignment  and  survival  of  causes  of  action: 
See  post,  sees.  1582  et  seq. 

See  the  subject  of  negotiable  instruments  and 
the  rights  of  parties  thereto  discussed  in  the  Civil 
Code,  sees.  3122  et  seq. 

Thing  in  action,  defined:  Civ.  Code,  sec.  953. 

S  369.  An  executor  or  administrator,  or  trustee 
of  an  express  trust,  or  a  person  expressly  author- 
ized by  statute,  may  sue  without  joining  with  him 
the  persons  for  whose  benefit  the  action  is  prose- 
cuted. A  person  with  whom,  or  in  whose  name, 
a  contract  is  made  for  the  benefit  of  another,  is  a 
trustee  of  an  express  trust,  within  the  meaning  of 
this  section. 

Executors  and  administrators,  action  by,  jointly 
with  heirs  or  devisees,  for  possession  of  real  estate 
or  quieting  title:  Sec.  1452.  Actions  by,  alone: 
Sec.  1581-3.  To  set  aside  fraudulent  deeds  made 
by  deceased:  Sec.  1589. 

§  370.  "When  a  married  woman  is  a  party,  her 
luisband  must  be  joined  with  her,  except: 

1.  When  the  action  concerns  her  separate  prop- 
erty, or  her  right  or  claim  to  tlie  homestead  prop- 
erty, she  may  sue  alone; 


139  PARTIES    TO    CIVIL   ACTIONS.  §§  371,  372 

2.  Wlieu  the  netiou  is  between  herself  and  her 
husband,  she  may  sue  or  be  sued  alone; 

3.  When  she  is  living  separate  and  apart  from 
her  husband  by  reason  of  his  desertion  of  her,  or 
by  agreement  in  writing  entered  into  between 
them,  she  may  sue  or  be  sued  alone.  [Amendment 
approved  March  24.  1874;  Amendments  1873-4,  p. 
293.     In  effect  July  1,  1874.] 

Contracts  of  married  women  generally:  See  Civ. 
Code,  sec.  158. 
Sole  traders:  Sec.  1811  et  seq. 

§  371.  If  a  husband  and  wife  be  sued  together 
the  wife  may  defend  for  her  own  right,  and  if  the 
husband  neglect  to  defend,  she  may  defend  for 
his  right  also. 

§  372.  When  an  infant,  or  an  insane  or  incom- 
petent person  is  a  party,  he  must  appear  either  by 
his  general  guardian  or  by  a  guardian  ad  litem 
appointed  by  the  court,  in  which  the  action  is 
pending  in  each  case.  A  guardian  ad  litem  may  be 
appointed  in  any  case,  when  it  is  deemed  by  the 
court  in  which  the  action  or  proceeding  is  prose- 
cuted, or  by  a  judge  thereof,  expedient  to  repre- 
sent .the  infant,  insane  or  incompetent  person  in 
the  action  or  proceeding,  notwithstanding  he  may 
have  a  general  guardian  and  may  have  appeared 
by  him.  [Amendment  approved  April  15,  1880; 
Amendments  1880,  p.  (38.    In  effect  April  15,  1880.] 

Appointment  of  guardian  ad  litem:  See  next  sec- 
tion. 

Guardian  and  ward,  generally:  See  post,  sees. 
1747  et  seq.;  and  Civ.  Code,  sees.  236  et  seq. 

Insane  or  incompetent  person:  Civil  Code,  sees. 
3(>,  38-41;  guardian  of,  sees.  1763-176G. 

Minors  and  persons  of  unsound  mind,  their 
rights  and  liabilities:  Civ.  Code,  sees.  33  et  seq. 


§§  373-373  PARTIES    TO    CIVIL    ACTIONS.  140 

§  373.  AVheu  a  guardian  ad  litem  is  appointed 
by  the  court,  he  must  be  appointed  as  follows: 

1.  AVheu  the  infant  is  plaintiff,  upon  the  appli- 
cation of  the  infant,  if  he  be  of  the  age  of  four- 
teen years,  or  if  under  that  age,  upon  the  applica- 
tion of  a  relative  or  friend  of  the  infant; 

2.  When  the  infant  is  defendant,  upon  the  ap- 
plication of  the  infant,  if  he  be  of  the  age  of  four- 
teen years,  and  apply  within  ten  days  after  the 
service  of  the  summons,  or  if  under  that  age,  or 
if  he  neglect  so  to  apply,  then  upon  the  applica- 
tion of  a  relative  or  friend  of  the  infant,  or  of  any 
other  party  to  the  action: 

3.  When  an  insane  or  incompetent  person  is  par- 
ty to  an  action  or  proceeding,  upon  the  applica- 
tion of  a  relative  or  friend  of,  such  insane  or  in- 
competent person,  or  of  any  other  party  to  the 
action  or  proceeding.  [Amendment  approved  April 
15,  18S0;  x^mendments  1880,  p.  63.  In  effect  April 
15,  1880.] 


(k 


§  374.  An  unmarried  female  may  prosecute, 
as  plaintiff,  in  an  action  for  her  own  seduction, 
and  may  recover  therein  such  damages,  pecuniary 
or  exemplary,  as  are  assessed  in  her  favor. 

Exemplary  damages:  See  Civ.  Code,  sec.  32t)4. 

§  375.  A  father,  or  in  case  of  his  death  or  de- 
sertion of  his  family,  the  mother,  may  prosecute 
as  plaintiff  for  the  seduction  of  the  daughter,  and 
the  guardian  for  the  seduction  of  the  ward,  though 
the  daughter  or  ward  be  not  living  with  or  in  the 
service  of  the  plaintilf  at  the  time  of  the  seduction 
or  afterward,  and  there  be  no  loss  of  service. 

(Juardian  ad  litem:  Sec.  372;  appointment  of, 
sec.  373. 

§  376.  A  fatlier,  or  in  case  of  his  death  or  de- 
sertion of  his  family,  the  mother,  may  maintain  an 


141  PARTIES    TO    CIVIL    ACTIONS.  §§  377-379 

action  for  the  iujiiry  or  death  of  a  minor  child, 
and  a  guardian  for  the  injury  or  death  of  his  ward, 
when  such  injury  or  death  is  caused  by  the  wrong- 
ful act  or  neglect  of  another.  Such  action  may 
be  maintained  against  the  person  causing  the  in- 
jury or  death,  or  if  such  person  be  employed,  by 
another  person  who  is  responsible  for  his  con- 
duct, also  against  such  other  person.  [Amend- 
ment approved  March  24,  1874;  Amendments  1873- 
4,  p.  294.     In  effect  July  1,  1874.] 

Guardian  and  ward:  Sees.  176S-177G,  and  Civil 
Code,  sees.  230-257. 

§  377.  When  the  death  of  a  person,  not  being 
/a  minor,  is  caused  by  the  wrongful  act  or  neglect 
of  another,  liis  heirs  or  personal  representatives 
may  maintain  an  action  for  damages  against  the 
person  causing  the  death,  or  if  such  person  be  em- 
ployed by  another  person  who  is  responsible  for 
his  conduct,  then  also  against  such  other  person. 
In  every  action  under  this  and  the  preceding  sec- 
tion, such  damages  may  be  given  as  under  all  the 
circumstances  of  the  case  may  be  just.  [Amend- 
ment appi-oved  March  24,  1874;  Amendments 
1873-4,  p.  224.    In  effect  July  1st,  1874.] 

§  378.  All  persons  having  an  interest  in  the 
subject  of  the  action  and  in  obtaining  the  relief 
demanded,  may  be  joined  as  plaintiffs,  except 
when  otherwise  provided  in  tliis  title, 

Cotenants:  Sec.  381. 

Special  partners:  Civil  Code,  sec.  2492. 

Other  parties,  bringing  in:  Sec.  389. 

Misjoinder  and  nonjoinder  of  plaintiffs:  See  sec. 
430. 

§  379.  Any  person  mny  be  made  a  defendant 
who  has  or  claims  an  interest  in  the  controversy 


§  380  PARTIES  TO  CIVIL  ACTIONS.  142 

adverse  to  the  plaintiff,  or  who  is  a  necessary  par- 
ty to  a  complete  determination  or  settlement  of 
the  question  involved  therein.  And  in  an  action 
to  determine  the  title  or  right  of  possession  to  real 
property  which,  at  the  time  of  the  commencement 
of  the  action,  is  in  the  possession  of  a  tenant,  the- 
landlord  may  be  joined  as  a  party  defendant. 

Second  sentence  of  section,  added  by  Code. 

Joining  landlord:  Civ.  Code,  sec.  1949. 

Parties  to  foreclosure:   Sec.   726. 

Corporation  stockholders:  Const.  Cal.,  art.  12, 
sees.  3,  4;  Civ.  Code,  sec.  322. 

Suits  against  the  State:  Const.  Cal.,  art.  20;  sec.  G. 

Associates,  suing  by  common  name:  Sec.  388. 

Qaieting  title,  suits:  See  sec.  738. 

Executors,  unqualified:  Sec.  1587. 

Fresh  parties,  bringing  in:  Sec.  389. 

Service  on  one  defendant  out  of  several,  effect 
of:  Sec.  414. 

State,  suits  against.— Suits  may  be  brought 
against  the  State  in  such  manner  and  in  such 
courts  as  shall  be  directed  by  law:  Const.  Cal.,  art. 
11,  sec.  11. 

Actions  against  State,  statutes  relating  to:  See 
post,  Appendix,  pp.  8G8-74,  Stat. 

§  380.  In  an  action  brought  by  a  person  out  of 
possession  of  real  property-,  to  determine  an  ad- 
verse claim  of  an  interest  or  estate  therein,  the 
person  making  such  adverse  claim  and  persons  in 
possession  may  be  joined  as  defendants,  and  if  the 
judgment  be  for  the  plaintiff,  he  may  have  a  writ 
for  the  possession  of  the  premises,  as  against  the 
defendants  in  the  action,  against  Avhom  the  judg- 
ment has  passed.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  295.  In  effect 
July  1,  1874.] 

As  originally  adopted,  this  section  was  compul- 


143  PARTIES    TO   CIVIL   ACTIONS.  §§  381,  382 

sory,  using  the  words  "must  be  joined"  in  place 
of  the  words  "may  be  joined,"  first  introduced  by 
the  amendment  of  1874. 

Actions  to  quiet  title:  See  post,  sec.  738. 
Writ  of  possession;  See  post,  sec.  682. 
Fresh  parties,  bringing  in:  See  sec.  389. 
Nonjoinder,  misjoinder  of  parties:  See  sec.  430. 

§  381.  Any  two  or  more  persons  claiming  any 
estate  or  interest  in  lands  under  a  common  source 
of  title,  whether  holding  as  tenants  in  common, 
joint  tenants,  coparceners,  or  in  severalty,  may 
unite  in  an  action  against  any  person  claiming  an 
adverse  estate  or  interest  therein,  for  the  purpose 
of  determining  such  adverse  claim,  or  of  estab- 
lishing such  common  source  of  title,  or  of  declar- 
ing the  same  to  be  held  in  trust,  or  of  removing  a 
cloud  upon  the  same.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  p.  295.  In  ef- 
fect July  1,  1874.] 

Cotenants  may  sever:  See  sec.  384,  infra. 

Ejectment:  See  sec.  420,  post,  and  note,  and  sec. 
379,  supra. 

Quieting  title:  See  post,  sec.  738. 

Joint  tenants:  See  sees.  374,  384. 

§  382.  Of  the  parties  to  the  action,  those  who 
are  united  in  interest  must  be  joined  as  plaintiffs 
or  defendants;  but  if  the  consent  of  any  one  who 
should  have  been  joined  as  plaintitf  cannot  be  ob- 
tained, he  may  be  made  a  defendant,  the  reason 
thereof  being  stated  in  the  complaint;  and  when 
the  question  is  one  of  a  common  or  general  inter- 
est, of  manj'  persons,  or  when  the  parties  are  nu- 
merous, and  it  is  impracticable  to  bring  them  all 
before  the  court,  one  or  more  may  sue  or  defend 
for  the  beneUt  of  all. 

Joinder,  misjoinder,  nonjoinder:  Executors,  etc.. 
not  qualified  need  not  join:  Sec.  1587. 


§§  3S3-385  PARTIES    TO    CIVIL    ACTIONS.  144 

§  383.  Tersons  severally  liable  upon  the  same 
obligation  or  instrument,  including  the  parties  to 
bills  of  exchange  and  promissory  notes,  and  sure- 
ties on  the  same  or  separate  instruments,  may  all 
or  any  of  them  be  included  in  the  same  action,  at 
the  option  of  the  plaintiff;  and  all  or  any  of  them 
join  as  plaintiffs  in  the  same  action,  concerning 
or  affecting  tJie  obligation  or  instrument  upon 
which  they  are  severally  liable.  [Approved  Feb- 
ruary 23,   1897;  Stats.  1897,  c.  23.] 

See  sees.  414,  578,  579. 

§  384.  All  persons  holding  as  tenants  in  com- 
mon, joint  tenants  or  coparceners,  or  any  number 
less  than  all,  may  jointly  or  severally  commence 
or  defend  any  civil  action  or  proceeding  for  the  en- 
forcement or  protection  of  the  rights  of  such  party. 

Coclaimants.  uniting  as  plaintiffs:  Sec.  381. 

§  385.  An  action  or  proceeding  does  not  abate 
by  the  death  or  any  disability  of  a  party,  or  by 
the  transfer  of  any  interest  therein,  if  the  cause  of 
action  survive  or  continue.  In  case  of  the  death 
or  any  disability  of  a  party,  the  court,  on  motion, 
may  allow  the  action  or  proceeding  to  be  continued 
by  or  against  his  representative  or  successor  in  in- 
terest. In  case  of  any  other  transfer  of  interet^t, 
the  action  or  proceeding  may  be  continued  in  the 
name  of  the  original  party,  or  the  court  may  allow 
the  person  to  whom  the  transfer  is  made  to  be  sub- 
stituted in  the  action  or  proceeding.  [Amendment 
approved  March  21,  1874;  Amendments  1873-4,  p. 
295.     In  effect  July  ],  1874.] 

If  a  party  die,  judgment  against  his  representa- 
tive must  be  that  he  pay  in  due  course  of  admin- 
istration: Sec.  1504.  Necessity  for  claiming 
against  estate  of  deceased:  Sec.  1493. 


145  PARTIES   TO   CIVIL  ACTIONS.  §§  386,  387 

Death  after  verdict  or  decision  and  before  judg- 
ment: See  post,  sec.  669. 

Survival  of  actions:  See  post,  sees.  1581  et  seq. 
Bringing  in  new  parties:  See  sec.  389. 

§  386.    A  defendant  against  whom  an  action  is 
pending  upon  a  contract,  or  for  specific  personal 
property,  may,  at  any  time  before  answer,  upon 
affidavit  that  a  person  not  a  party  to  the  action 
malvcs  against  him,    and    witliout     any    collusion 
with  him,  a  demand  upon  such  contract,  or  for 
such  property,  upon  notice  to  such  person  and  the 
adverse  party,  apply  to  the  court  for  an  order  to 
substitute  such  person  in  his  place,  and  discharge 
him  from  liability  to  either  party,  on  his  deposit- 
ing in  court  the  amount  claimed  on  the  contract, 
or  delivering  the  property,  or  its  value,  to  such  per- 
son as  the  court  may  direct;  and  the  court  may,  in 
its  discretion,  malve  tlie  order.    And  whenever  con- 
flicting claims  are  or  may  be  made  upon  a  person 
for  or  relating  to  personal  property,   or  the  per- 
formance of  an  obligation,  or  any  portion  thereof, 
such  person  may  bring  an  action  against  the  con- 
flicting claimants  to  compel  them  to  interplead  and 
litigate  their  several  claims    among    themselves. 
The  order  of  substitution  may  be  made,  and  the 
action  of  interpleader  may  be  maintained,  and  the 
applicant  or  plaintiff  be  discharged  from  liability 
to  all  or  any  of  the  conflicting  claimants,  although 
their  titles  or  claims  have  not  a  common  origin,  or 
are  not  identical,-  but  are  adverse  to  and  independ- 
ent of  one  another.     [Amendment  approved  March 
3,  1881;  Stats.  1881,  19.    In  effect  March  3,  1881.] 

§  387.    Any  person  may,  before  the  trial,  inter- 
^  vene  in  an  action  or  proceeding,  who  has  an  inter- 
est in  the  matter  in  litigation,  in  the  success  of 
either  of  the  parties,  or  an  interest  against  both. 
An  intervention  talies  place  when  a  third  person  is 
Code  Civ.  Proc— 13. 


§§  388,  389         PARTIES   TO  CIVIL  ACTIONS.  146 

permitted  to  become  a  party  to  an  action  or  pro- 
ceeding bet^Yeen  other  persons,  either  by  joining 
the  plaintiff  in  claiming  what  is  sought  by  the 
complaint,  or  by  uniting  with  the  defendant  in  re- 
sisting the  claims  of  the  plaintiff",  or  by  demand- 
ing anything  adversely  to  both  the  plaintiff  and 
the  defendant,  and  is  made  by  complaint,  setting 
forth  the  grounds  upon  which  the  intervention 
rests,  filed  by  leave  of  the  court  and  served  upon 
the  parties  to  the  action  or  proceeding  who  have 
not  appeared,  and  upon  the  attorneys  of  the  par- 
ties who  have  appeared,  who  may  answer  or  de- 
mur to  it  as  if  it  were  an  original  complaint. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  296.    In  effect  July  1,  1874.] 

Eminent  domain— intervention  in,  sec.  1246. 

§  388.  When  two  or  more  persons,  associated 
in  any  business,  transact  such  business  under  a 
common  name,  whether  it  comprise  the  names  of 
such  persons  or  not,  the  associates  may  be  sued  by 
such  common  name,  the  summons  in  such  cases 
being  served  on  one  or  more  of  the  associates;  and 
the  judgment  in  the  action  shall  bind  the  joint 
property  of  all  the  associates,  in  the  same  manner 
as  if  all  had  been  named  defendants,  and  had  been 
sued  upon  their  joint  liability. 

Business  associates— common  name,  sec.  414. 

Partners  under  fictitious  name  must  file  certifi- 
cate:  See  Civ.  Code,  sees.  2466  et  seq. 

§  389.  The  court  may  determine  any  contro- 
versy betAveen  parties  before  it,  when  it  can  be 
done  without  prejudice  to  the  rights  of  others,  or 
by  saving  their  rights;  but  when  a  complete  de- 
termination of  the  controversy  cannot  be  had 
without  the  presence  of  other  parties,  the  court 
must  then  order  them  to  be  brought  in.  and  to 


147  PARTIES   TO   CIVIL  ACTIONS.  §  390 

that  eiid  may  order  amended  and  supplemental 
pleadings,  or  a  eross-complaint  to  be  filed,  and 
summons  thereon  to  be  issued  and  served.  And 
when,  in  an  action  for  the  recovery  of  real  or  per- 
sonal property,  a  person,  not  a  party  to  the  action, 
but  having-  an  interest  in  the  subject  thereof, 
malvcs  application  to  the  court  to  be  made  a  party, 
it  may  order  him  to  be  brought  in,  by  the  proper 
amendment.  [Approved  February  16,  1897;  Stats. 
1897,  c.  12.] 

Joining  landlord,  sec.  379. 

Party,  adding  and  amending  name  of,  sec.  473. 

§  390.  Causes  of  action  upon  contract,  or  for 
damages  arising  out  of,  or  pertaining  or  incident 
J  to,  the  official  administration  of  the  fire  depart- 
ments created  by  acts  of  the  Legislature  of  this 
State,  shall  be  brought  directly  by  and  against  the 
municipality  by  its  corporate  name  wherein  the 
damage  was  sustained.  And  the  said  boards  of 
fire  commissioners  shall  not  be  sued  as  such,  ex- 
cept to  compel  or  restrain  the  performance  of  acts 
proper  to  be  compelled  or  restrained  under  and 
not  within  the  discretion  intended  to  be  conferred 
by  this  act.  [New  section  approved  March  12, 
1885;  Stats.  1885,  92.] 


§  392  PLACE    OF   TRIAL.  148 

TITLE  IV. 

OF   THE   PLACE   OF  TRIAL   OF   CIVIL   ACTIONS. 

§  392.  Certain  actions  to  be  tried  where  the  subject  or 
some    part    thereof    is    situated. 

§  393.  Other  actions,  where  the  cause  or  some  part  thereof 
arose. 

§  394.    Place  of  trial  of  actions  against  counties. 

§  'odo.  Other  actions  according  to  the  residence  of  the  par- 
ties. 

§  396.  Action  may  be  tried  in  any  county,  unless  the  de- 
fendant demand  a  trial  in  the  proper  county. 

S  397.     Place  of  trial  may  be  changed  in  certain   cases. 

§  398.     When  judge  is  disqualified,  cause  to  be  transferred. 

^  399.  Papers  to  be  transmitted.  Costs,  etc.  Jurisdiction, 
etc. 

§  400.  Proceedings  after  judgment  in  certain  cases  trans- 
ferred. 

§  392.  Actions  for  the  following  causes  must  be 
tried  in  the  county  in  which  the  subject  of  the  ac- 
tion, or  some  part  thereof  is  situated,  subject  to 
the  power  of  the  court  to  change  the  place  of  trial, 
as  provided  in  this  Code: 

1.  For  the  recovery  of  real  property',  or  of  an  es- 
tate or  interest  therein,  or  for  the  determination, 
in  any  form  of  such  right  or  interest,  and  for  in- 
juries to  real  property; 

2.  For  partition  of  real  property; 

3.  For  the  foreclosure  of  all  liens  and  mortgages 
on  real  property.  Where  the  real  property  is  sit- 
uated partly  in  one  county  and  partly  in  another, 
the  plaintiff  may  select  either  of  the  counties,  and 
the  county  so  selected  is  the  proper  county  for  the 
trial  of  such  action;  provided,  that  in  the  case 
mentioned  in  this  subdivision,  if  the  plaintiff  prays 
in  his  complaint  for  an  injunction  pending  the  ac- 
tion, or  applies  pending  the  action,  for  an  injunc- 
tion, the  proper  county  for  the  trial  shall  be  the 
county  in  which  the  defendant  resides  or  a  ma- 


149  PLACE   OF  TRIAL.  §§  393.  394 

jority  of  the  defendants  reside  at  the  commence- 
ment of  the  action.  [Amendment  approved  March 
19,  18S9;  Stats.  1SS9,  352.  In  effect  March  19, 
1889.] 

Riot,  actions  for  damages  caused  by,  must  be 
tried  in  the  county  in  whicli  the  property  injured 
is  situated:   Polit.  Code,  sec.  4-153. 

§  393.  Actions  for  the  following  causes  must  be 
tried  in  the  county  where  the  cause,  or  some  part 
thereof,  arose,  subject  to  the  like  power  of  the 
court  to  change  the  place  of  trial: 

1.  For  the  recovery  of  a  penalty  or  forfeiture 
imposed  bj-  statute;  except  that,  when  it  is  im- 
posed for  an  offense  committed  on  a  lake,  river,  or 
other  stream  of  water,  situated  in  two  or  more 
counties,  the  action  may  be  brought  in  any  county 
bordering  on  such  lake,  river,  or  stream,  and  op- 
posite to  the  place  where  the  offense  was  com- 
mitted; 

2.  Against  a  public  officer,  or  person  especially 
appointed  to  execute  his  duties,  for  an  act  done 
by  him  in  virtue  of  his  office,  or  n gainst  a  person 
who.  by  his  command  or  in  his  aid,  does  anything 
touching  the  duties  of  such  officer. 

§  394.  An  action  against  a  county  or  city  and 
county  may  be  commenced  and  tried  in  such  coun- 
■^  ty  or  city  and  county  unless  such  action  is  brought 
by  a  county  or  city  and  county,  in  which  case  it 
may  be  commenced  and  tried  in  any  county  or  city 
and  county  not  a  party  thereto;  provided  further, 
that  whenever  an  action  is  brought  by  a  county  or 
city  against  citizens  of  another  county,  or  a  corpo- 
ration doing  business  in  the  latter,  the  action  must 
be,  on  the  motion  of  the  defendant,  transferred 
for  trial  to  a  county  other  than  the  plaintiff,  if  the 
plaintiff  be  a  county,  and  other  than  that  in  which 


I 


§§  395-397  PLACE   OF  TRIAL.  150 

the  plaintiff  is  situated,  if  the  plaintiff  be  a  city. 
[Amendment  approved  March  10,  1891;  Stats.  1891, 
56.    In  effect  immediately.] 

§  395.  In  all  other  cases,  the  action  must  tried 
in  the  county  in  which  the  defendants,  or  some  of 
them  reside  at  the  commencement  of  the  action; 
or,  if  none  of  the  defendants  reside  in  the  State, 
or,  if  residing  in  this  State,  and  the  county  in 
which  they  reside  is  unknown  to  the  plaintiff",  the 
same  may  be  tried  in  any  county  which  the  plain- 
tiff may  designate  in  his  complaint;  and  if  the  de- 
fendant is  about  to  depart  from  the  State,  such  ac- 
tion may  be  tried  in  any  county  where  either  of 
the  parties  reside,  or  service  is  had;  subject,  how- 
ev.er,  to  the  power  of  the  court  to  change  the  place 
of  trial  as  provided  in  this  Code. 

Changing  venue  in  criminal  actions:  See  sees. 
1033,  1034,  Pen.  Code. 

§  396.  If  the  county  in  which  the  action  is  com- 
menced is  not  the  proper  county  for  the  trial  there- 
of, the  action  may,  notwithstanding,  be  tried  there- 
in, unless  the  defendant,  at  the  time  he  appears 
and  answers  or  demurs,  files  an  affidavit  of  mer- 
its, and  demands,  in  writing,  that  the  trial  be  had 
in  the  proper  coumy. 

§  397.  The  court  may,  on  motion,  change  the 
place  of  trial  in  the  following  cases: 

1.  When  the  county  designated  in  the  com- 
plaint is  not  the  proper  county; 

2.  When  there  is  reason  to  believe  that  an  im- 
partial trial  cannot  be  had  therein; 

3.  When  the  convenience  of  witnesses,  and  the 
ends  of  justice  would  be  promoted  by  the  change; 

4.  When  from  any  cause  the  judge  is  disquali- 
fied from  acting. 

A])peal— from  order  as  to  change  of  venue,  sec. 
939,  subd.  3. 


151  PLACE    OF    TRIAL.  §§  398-400 

Judge,  when  disqualified:    See  ante,  sec.  170. 

Mandamus  and  prohibition.— Controlling  action 
of  court  on  motion  to  change  the  place  of  trial  by- 
resort  to  these  Avrits,  see  the  note  to  the  next  sec- 
tion, and  sections  1085,  1102,  post. 

§  398.  If  an  action  or  proceeding  is  commenced 
or  pending  in  a  court,  and  the  judge  or  justice 
thereof  is  disqualified  from  acting  as  such,  or  if, 
from  any  cause,  the  court  orders  the  place  of  trial 
changed,  it  must  be  transferred  for  trial  to  a  court 
the  parties  may  agree  upon,  by  stipulation  in  writ- 
ing, or  made  in  open  court  and  entered  in  the 
minutes;  or,  if  they  do  not  so  agree,  then  to  the 
nearest  or  most  accessible  court,  where  the  lilie 
objection  or  cause  for  making  the  order  does  not 
exist,  as  follows: 

1.  If  in  a  Superior  Court,  to  another  Superior 
Court. 

2.  If  in  a  Justice's  Court,  to  another  Justice's 
Court  in  the  same  county.  [Approved  March  27, 
1897;  Stats.  1897,  c.  121.    In  effect  immediately.] 

§  399.  When  an  order  is  made  transfemng  an 
action  or  proceeding  for  trial,  the  Clerk  of  the 
Court,  or  Justice  of  the  I*eace,  must  transmit  the 
pleadings  and  papers  therein  to  the  Clerk  or  Jus- 
tice of  the  Court  to  which  it  is  transferred.  The 
costs  and  fees  thereof,  and  of  filing  the  papers 
anew,  must  be  paid  by  the  party  at  whose  in- 
stance the  order  was  made.  The  court  to  which 
an  action  or  proceeding  is  transferred  has  and  ex- 
ercises over  the  same  the  like  jurisdiction  as  if 
it  had  been  originally  commenced  therein. 

§  400.  AVhen  an  action  or  proceeding  affecting 
the  title  to  or  possession  of  real  estate  has  been 
brought  in  or  transferred  to  any  court  of  a  county 
other  than  the  county  in  which  the  real  estate,  or 


p 


§§  405,  400  MANNER    OF    COMMENCING.  152 

some  portion  of  it,  is  situated,  the  Clerli  of  such 
court  must,  after  final  judgment  therein,  certify 
under  his  seal  of  office,  and  transmit  to  the  cor- 
responding court  of  the  county  in  which  the  real 
estate  affected  by  the  action  is  situated,  a  copy  of 
the  judgment.  The  Clerk  receiving  such  copy 
must  file,  docket,  and  record  the  judgment  in  the 
record   of   the   court,   briefiy  designating  it  as   a 

judgment  transferred  from  court  (naming 

the  proper  court). 

TITLE   Y- 

OF   THE   MANNER   OF   COMMENCING   CIVIL  ACTIONS. 

§  405.     Actions,    how   commenced. 

§  406.  Complaint,  how  indorsed.  When  summons  may  be 
issued,  and  how  waived. 

§  407.  Summons,  how  issued,  directed,  and  what  to  con- 
tain. 

§  408.     Alias  summons. 

§  409.  Notice  of  the  pendency  of  an  action  affecting  the 
title  to  real  property. 

§  410.     Summons,    how  served  and  returned. 

§  411.     Summons,  how  served. 

§  412.  Publication  when  defendant  is  absent  from  the 
State,  concealed,  or  a  foreign  corporation  having 
no  agent,   etc. 

§  413.     Manner  of  publication  and  appointment  of  attorney. 

§  414.  Proceedings  where  there  are  several  defendants,  and 
part  only  are  served. 

§  415.     Proof  of  service,   how  made. 

§  416.     When  jurisdiction   of  action   acquired. 

§  405.  Civil  actions  in  the  courts  of  this  State 
are  commenced  by  filing  a  complaint.  [Amend- 
ment approved  March  24,  1874;  Amendments  1873- 
4,  29G.    In  effect  July  1,  1874.] 

§  406.    The   Clerk    must    indorse    on   the   com 
plaint  the  day,  month,  and  year  that  it  is  filed: 
and  at  any  time  within  one  year  thereafter,  the 
plaintiff  may  have  a  summons  issued;  and  if  the 
action  be  brought  against  two  or  more  defendants. 


153  MANNER  OF  COMMENCING.  §  407 

who  reside  in  different  counties,  may  have  a  sum 
mons  issued  for  each  of  such  counties  at  the  same 
time.  But  at  any  time  witliin  the  year  after  the 
complaint  is  filed,  the  defendant  may,  in  writing, 
or  by  appearin.u-  and  answering  or  demurring, 
waive  the  issuing  of  summons;  or,  if  the  action 
be  ])rought  upon  a  joint  contract  of  two  or  moi"e 
defendants,  and  one  of  them  has  appeared  within 
the  year,  the  other  or  others,  may  be  served  or 
appear  after  the  year,  at  any  time  before  trial. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  296.     In  effect  July  1,  1874.] 

Admission  of  service  by  defendant:   Sec.  415. 

Alias  summons:    Sec.  408. 

Appearance:    Sees.  416,  1014. 

,  §  407.  The  summons  must  be  directed  to  the 
defendant,  signed  by  the  Clerk,  and  issued  under 
the  seal  of  the  court,  and  must  contain: 

1.  The  names  of  the  parties  to  the  action,  the 
court  in  which  it  is  brought,  and  the  county  in 
which  the  complaint  is  filed; 

2.  A  direction  that  the  defendant  appear  and 
answer  the  complaint  within  ten  days,  if  the  sum- 
mons is  served  within  the  county  in  which  the 
action  is  brought;  within  thirty  days,  if  served 
elsewhere; 

3.  A  notice  that,  unless  the  defendant  so  ap- 
pears and  answers,  the  plaintiff  will  tal^e  judg- 
ment for  any  money  or  damages  demanded  in  the 
complaint  as  arising  upon  contract,  or  will  apply 
to  the  court  for  any  other  relief  demanded  in  the 
complaint.  [Approved  March  2,  1897;  Stats.  1897, 
.•..-,8.] 

Abbreviations,  etc.,  sec.  186.    Amen  dments.  sec, 
478. 
Abbreviations  and  numerals:    Sec.  186. 
mendment:    Sec.  473. 


§§  408,  109  MANNER  OF  COMMENCING.  154 

Clerk's  duties,  generally:    Sec.  2G2. 

Spanish  language,  proceedings  in:  Sees.  185. 
1056. 

Style  of  process.— The  style  of  all  process  shall 
be:  "The  people  of  the  State  of  California,"  and 
all  prosecutions  shall  be  conducted  in  their  name 
and  by  their  authority:  Const.  Cal.,  art.  6,  sec.  18. 
The  sovereignty  of  the  State  resides  in  the  people 
thereof,  and  all  writs  and  processes  must  issue  in 
their  name:    Polit.  Code,  sec.  30. 

§  408.  If  the  summons  is  returned  without  be- 
ing served  on  any  or  all  of  the  defendants,  or  if  it 
has  been  lost,  the  Clerk,  upon  the  demand  of  the 
plaintiff,  may  issue  an  alias  summons,  in  the  same 
form  as  the  original;  provided,  that  no  such  alias 
summons  shall  be  issued  after  the  expiration  of 
one  year  from  the  date  of  the  filing  of  the  com-  > 
plaint.  [Amendment  approved  March  8,  1887; 
Stats.  1887,  50.    In  effect  March  8,  1887.] 

§  409.  In  an  action  affecting  the  title  or  the 
right  of  possession  of  real  property,  the  plaintiff, 
at  the  time  of  filing  the  complaint,  and  the  defend- 
ant, at  the  time  of  filing  his  answer,  when  affirma- 
tive relief  is  claimed  in  such  answer,  or  at  any 
time  afterward,  may  record  in  the  office  of  the  Re- 
corder of  the  county  in  which  the  property  is  situ- 
ated a  notice  of  the  pendency  of  the  action,  con- 
taining the  names  of  the  parties  and  the  object  of 
the  action  or  defense,  and  a  description  of  the 
property  in  that  county  affected  thereby.  From 
the  time  of  filing  such  notice  for  record  only  shall 
a  purchaser  or  incumbrancer  of  the  property  af- 
fected thereby  be  deemed  to  have  constructive  no- 
tice of  the  pendency  of  the  action,  and  only  of  its 
pendency  against  parties  designated  by  their  real 
names.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  297.    In  effect  July  1,  1874.] 


r..')  MANNER  OF   COMMENCING.  §§  410,  411 

f 

Partition— recording  notice  of  suit,  sec.  755. 

Person  in  possession  of  real  property,  action 
airainst,  cannot  be  prejudiced  by  any  alienation 
made  by  him:   Sec.  747. 

§  410.    The  summons    may  be  served    by  the 
|_Sheriff  of  the  county  where  the  defendant  is  found 
I    or  by  any  other  person  over  the  age  of  eighteen, 
I    not  a  party  to  the  action.    A  copy  of  the  complaint 
must  be  served  with  the  summons,  upon  each  of 
the  defendants.    When  the  summons  is  served  by 
the  Sheriff,  it  must  be  returned,  with  his  certifi- 
cate of  its  service,  and  of  the  service  of  any  copy 
'   of  the  complaint,  where  such  copy  is  served,  to 
\  the  office  of  the  Clerk  from  which  it  issued.   When 
it  is  served  by  any  other  person,  it  must  be  re- 
turned to  the  same  place  with  an  affidavit  of  such 
person  of  its  service,  and  of  the  service  of  a  copy 
of  the    complaint,    where  such    copy    is   served. 
[Amendment  approved  March  23,  1893;  Stats.  1893, 
207.] 

Costs,  where  served  by  person  other  than  Sher- 
iff: See  post.  Appendix,  790. 

§  411.  The  summons  must  be  served  by  deliver- 
ing a  copy  thereof,  as  follows: 

1.  If  the  suit  is  against  a  corporation  formed 
under  the  laws  of  this  State,  to  the  president  or 
other  head  of  the  corporation,  secretary,  cashier, 
or  managing  agent  thereof; 

2.  If  the  suit  is  against  a  foreign  corporation, 
or  a  nonresident  joint  stocli  company,  or  associa- 
tion, doing  business  and  having  a  managing  or 
business  agent,  cashier,  or  secretary  within  this 
State,  to  such  agent,  cashier,  or  secretary; 

3.  If  against  a  minor  under  the  age  of  fourteen 
years,  residing  within  this  State,  to  such  minor, 
personally,  and  also  to  his  father,  mother,  or  guar- 


§  412  MANNER  OF  COMMENCING.  15ft 

dian;  or,  if  there  be  none  within  this  State,  then 
to  any  person  having  the  care  or  control  of  such 
minor,  or  Avith  whom  he  resides,  or  in  whose  ser- 
vice he  is  employed; 

4.  If  against  a  person  residing  within  this  State, 
who  has  been  judicially  declared  to  be  of  unsound 
mind,  or  incapable  of  conducting  his  own  affairs, 
and  for  whom  a  guardian  has  been  appointed,  to 
such  person  and  also  to  his  guardian; 

5.  If  against  a  county,  city  or  town,  to  the 
president  of  the  Board  of  Supervisors,  president  of 
the  Council  or  trustees,  or  other  head  of  the  legis- 
lative department  thereof; 

6.  In  all  other  cases,  to  the  defendant  personal- 
ly. [Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  298.    In  effect  July  1,  1874.] 

Association,  service  may  be  on  one  of  the  mem- 
bers of:    Sec.  388. 

Return  of  summons:   Sees.  411,  415. 

Spanish  language,  proceedings  in:  Sees.  185, 
1056. 

Telegraph,  service  by:    See.  1017. 

§  412.  Where  the  person  on  whom  service  is  to 
be  made  resides  out  of  the  State,  or  has  departed 
from  the  State,  or  cannot,  after  due  diligence,  be 
found  within  the  State,  or  conceals  himself  to 
avoid  the  service  of  summons,  or  is  a  foreign  cor- 
poration having  no  managing  or  business  agent, 
cashier,  or  secretary  within  the  State,  and  the  fact 
appears  by  affidavit  to  the  satisfaction  of  the 
court,  or  a  judge  thereof;  and  it  also  appears  by 
such  affidavit,  or  by  the  verified  complaint  on  file, 
that  a  cause  of  action  exists  against  the  defendant 
in  respect  to  whom  the  service  is  to  be  made,  or 
that  he  is  a  necessary  or  proper  party  to  the  ac- 
tion; or  when  it  appears  by  such  affidavit,  or  by 
the  complaint  on  file  herein,  that  it  is  an  action 


157  MANNER   OF   COMMENCING.  S  413 

which  relates  to  or  the  subject  of  which  is  real  or 
personal  property  in  this  State,  in  which  such  per- 
son defendant  or  foreign  corporation  defendant 
has  or  claims  a  lien  or  interest,  actual  or  contin- 
gent, therein,  or  in  which  the  relief  demanded  con- 
sists wholly  or  in  part  in  excluding  such  person 
or  foreign  corporation  from  any  interest  therein, 
such  court  or  judge  may  make  an  order  that  the 
service  be  made  by  the  publication  of  the  sum- 
mons. [Amendment  approverd  March  23.  1893; 
Stats.  1893,  285.    In  effect  immediately.] 

i  §  413.  The  order  must  direct  the  publication  to 
Ube  made  in  a  newspaper,  to  be  designated,  as  most 
f  likely  to  give  notice  to  the  person  to  be  served, 
I,  and  for  such  length  of  time  as  may  be  deemed 
f  reasonable,  at  least  once  a  week;  but  publication 
i*  against  a  defendant  residing  out  of  the  State,  or 
f  absent  therefrom,  must  not  be  less  than  two 
I'  months.  In  case  of  publication,  where  the  resi- 
j'  dence  of  a  nonresident  or  absent  defendant  is 
.  known,  the  court  or  judge  must  direct  a.  copy  of 
;  the  summons  and  complaint  to  be  forthwith  de- 
!  iK)sited  in  the  postotiice.  directed  to  the  person  to 
J  be  served,  at  his  place  of  residence.  When  publi- 
;  cation  is  ordered,  personal  service  of  a  copy  of  the 
!  summons  and  complaint  out  of  the  State  is  equiv- 
;  alent  to  publication  and  deposit  in  the  postotiice, 
{  and  in  either  case  the  service  of  the  summons  is 
;  complete  at  the  expiration  of  the  time  prescribed 
I  by  the  order  for  publication.  [Amendment  ap- 
i  proved  :March  24.  1874;  Amendments  ] 873-4,  299. 
I;  In  effect  .Tulv  1,  1874.] 

:      Liens,   mechanics,    etc.,   publication   under:    S«m- 

I   1191. 

I      Publication,  proof  of:   Sees.  2010,  2011. 

j      .Judgment  by  default:  Sec.  585,  subd.  3. 

j  Code  Civ.  Proc— 14. 

i 


1 


§§  414-413         MANNER    OP    COMMENCING.  158 

§  414.  When  the  action  is  against  two  or  more 
defendants,  jointly  or  severally  liable  on  a  con- 
tract, and  the  summons  is  served  on  one  or  more 
but  not  on  all  of  them,  the  plaintiff  may  proceed 
against  the  defendants  served  in  the  same  man- 
ner as  if  they  were  the  only  defendants. 

Joining  persons  severally  liable  upon  instru- 
ments:  fcSec.  383. 

Judgment  against  some  defendants,  proceed- 
ings continuing  against  the  others:   Sec.  579. 

Joint  debtors,  proceedings  against,  after  judg- 
ment against  some:    Sec.  989. 

§  415.  Proof  of  the  service  of  summons  and 
complaint  must  be  as  follows: 

1.  If  served  by  the  Sheriff,  his  certificate  there- 
of; 

2.  If  by  any  other  person,  his  affidavit  thereof; 
or. 

3.  In  case  of  publication,  the  affidavit  of  the 
printer,  or  his  foreman  or  principal  clerk,  showing 
the  same;  and  an  affidavit  of  a  deposit  of  a  copy 
of  the  summons  in  the  postofiice,  if  the  same  has 
been  deposited;  or, 

4.  The  written  admission  of  the  defendant  in 
case  of  service  otherwise  than  by  publication;  the 
certificate  or  affidavit  must  state  the  time  and 
place  of  service. 

Time  and  place:   See  sees.  416,  post. 

§  416.  From  the  time  of  the  service  of  the  sum- 
mons and  of  a  copy  of  the  complaint  in  a  civil  ac- 
tion, where  service  of  a  copy  of  the  complaint  is 
required,  or  of  the  completion  of  the  publication 
when  service  by  publication  is  ordered,  the  court 
is  deemed  to  have  acquired  jurisdiction  of  the  pap- 
ties,  and  to  have  control  of  all  the  subsequent 
proceedings.     The  voluntary  appearance  of  a  de- 


159  THE  PLEADINGS  IN   GENERAL.  §  420 

fendant  is  equivalent  to  personal  service  of  the 
summons  and  copy  of  the  complaint  upon  him. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  299.    In  effect  July  1,  1874.] 

An  act  concerning-  service  of  summons  upon  ab- 
sent defendants  by  publication,  approved  March 
15,  1872,  is  repealed.     [In  effect  March  20,  1874.] 

Admission  of  service:  Sec.  415. 

Appearance:  Sec.  1014. 

Waiver  of  summons:   Sec,  406. 


7u^4r{jud. 


'""■^-  TITLE   VI. 

OF   THE   PLEADINGS   IN   CIVIL   ACTIONS. 

Chapter  I.  The  pleadings  in  general. 

II.  The  complaint. 

III.  Demurrer  to  the  complaint. 

IV.  The  answer. 

V.    Demurrer  to  answer. 
VI.    Verification  of  pleadings. 
VII.    General  rules  of  pleading. 
VIII.    Variance — Mistalies  in    pleadings    and 
amendments. 

CHAPTER  I. 

THE  PLEADINGS  IN  GENERAL. 

§  420.     Definition    of   pleadings. 

§  421.    This  Code  prescribes  the  form  and   rules   of   plead- 
ings. 
§  422.    "What  pleadings  are  allowed. 

§  420.  The  pleadings  are  the  formal  allegations 
by  the  parties  of  their  respective  claims  and  de- 
fenses, for  the  judgment  of  the  court. 


§§  421,  426  THE    COMPLAINT.  160 

§  421.  The  forms  of  pleading  iu  civil  actious, 
and  the  rules  by  which  the  sufficiency  of  the 
pleadings  is  to  be  determined,  are  those  prescribed 
in  this  Code. 

One  form  of  actions:   Sec.  307. 

§  422.  The  only  pleadings  allowed  on  the  part 
of  the  plaintiff  are: 

1.  The  complaint; 

2.  The  demurrer  to  the  answer. 
And  on  the  part  of  the  defendant: 

1.  The  demurrer  to  the  complaint; 

2.  The  answer. 

CHAPTER   II. 

THE    COMPLAINT. 

5  425.     Complaint,  first  pleading. 

§  426.     Complaint,    what  to  contain. 

§  427.     What   causes   of   action    may   be   joined. 

§  425.  The  first  pleading  on  the  part  of  the 
plaintiff  is  the  complaint. 

S  426.    The  complaint  must  contain: 

1.  The  title  of  the  action,  the  name  of  the  court 
and  county  in  which  the  action  is  brought,  and  the 
names  of  the  parties  to  the  action; 

2.  A  statement  of  the  facts  constituting  the 
cauSe  of  action,  in  ordinary  and  concise  language; 

.3.  A  demand  of  the  relief  which  the  plaintiff 
claims.  If  the  recovery  of  money  or  damages  be 
demanded,  the  amount  thereof  must  be  stated. 

Title,  papers  defectively  entitled:    Sec.  1046. 

Venue:    Sees.  392-400. 

Parties:    Sees.  367-389. 

Association  may  be  sued  under  common  name: 
Sec.  388. 


161  THE   COMPLAINT.  ?;  426 

Fictitious  uaiiios  for  defendants:  See.  474. 

Abbreviations  and  nnmerals:  Sec.  ISO. 

Construction  of  pleadings  to  be  liberal:   Sec.  432. 

Errors  and  defects  to  be  disregarded:  Sec.  475. 

Material  allegations  not  controverted  taken  a» 
true:    Sec.  462. 

Proceedings  in  Spanish  language:  Sees.  185, 
1056. 

Service  of  complaint:    Sec.  410. 

Several  causes  of  action,  uniting:    Sec.  427. 

Pleading,  in  particular  cases— Account.  Items  of, 
need  not  be  set  out  in  complaint:  Sec.  454;  Suit 
for:    See  sees.   1498-8,   post. 

Amendment  of  pleadings:  Sees.  472,  473;  of  com- 
plaint:   Sec.  432. 

Claim  and  delivery:    See  sec.  .509,  post. 

Cloud  on  title,  action  to  remove:    Sees.  738,  1050. 

As  to  effect  of  setting  out  written  instrument,  if 
its  genuineness  is  not  denied  on  oath:  Sees.  447- 
449." 

Conditions  precedent,  mode  of  averring  perform- 
ance of:    Sec.  457. 

Variance  between  name  of  corporation  sued  and 
corporation  making  contract:    Sec.  471. 

Death,  suggestion  of:    Sec.  385. 

As  to  the  necessity  of  demanding  a  deed:  vSee 
sec.  457. 

Detainer,  unlawful:  Sees.  1159-1179.  Complaint 
in:    Sec.  1166. 

Detinue:    See  "Replevin,"  infra. 

Disability,  suggestion  of:    Sec.  385. 

Divorce:    See  Civ.  Code,  sees.  90  et  seq. 

Nuisance:   Sec.  731,  post. 

Parent,  action  for  the  injury  or  death  of  minor 
child:    Sees.  376,  377. 

Partition:   Sees.  752,  753. 

Partnership.— Persons  doing  business  as  part- 
uers  contrary  to  tlie  provisions  of  the  Civil  Code, 


§  420  THE   COMPLAINT.  162 

division  3,  part  4,  title  10,  chapter  2,  article  7— i.  e., 
Civil  Code,  sections  246G-2471— cannot  maintain 
any  action  upon  or  on  account  of  any  contracts 
made  or  transactions  had  in  their  partnership 
name,  in  any  courts  of  this  State,  until  they  have 
first  filed  the  certificate,  and  made  the  publication 
therein  required:    Civil  Code,  sec.  2468. 

"Partnership":  See  Civil  Code,  sees.  2395  et  seq., 
for  the.  general  provisions  on  the  subject. 

Quiet  title  to  real  estate,  action  to:  Sec.  738.  To 
money  or  obligation:  Sec.  1050. 

Replevin:    See  post,  sec  509. 

Seduction,  unmarried  female  may  prosecute  ac- 
tion for  her  own:  Sec.  374.  Father,  or  in  certain 
cases  mother,  may  prosecute:  Sec.  375.  Guardian 
may  prosecute:    Sec.  375. 

Misjoinder,  nonjoinder,  etc.:  Sec.  430. 
Ejectment,  order  for  party  to  make  survey  of  prop- 
erty in  dispute:    Sees.  742,  743. 

Executor:  See  "Administrator,"  "Ejectment," 
supra. 

Forcible  entry,  etc.:  Sees.  1159-1179. 

Gold  coin,  allegations  to  obtain  judgment  in: 
Sec.  667. 

Goods  sold,  etc.— Liquors.— By  chapter  314,  ap- 
proved March  20,  1874,  Stats.  1874,  p.  509,  the  pur- 
chase of  or  sale  and  delivery  of  any  spirituous  or 
malt  liquors,  wine,  or  cider,  by  retail  or  by  the 
drink,  is  declared  to  be  an  invalid  consideration 
for  any  promise  to  pay,  or  assumpsit  of  account 
therefor,  when  the  amount  of  such  account  or  de- 
mand exceeds  five  dollars;  and  no  court  in  any 
action  at  law  is  to  render  judgment  for  a  greater 
amount  than  five  dollars  for  the  sale  at  retail,  or 
by  the  drinlv,  of  any  spirituous  or  malt  liquors, 
wine,  or  cider,  together  with  costs;  but  nothing  in 
that  act  is  to  be  construed  to  affect  in  any  manner 
debts  contracted  prior  to  its  passage. 


163  THE   COMPLAINT.  §  426 

Guardian,  action  by,  for  injury  or  deatli  of  ward: 
Sees.  376,  377.    Waste  by:  Sec.  732. 

Heirs  or  representatives,  action  by,  for  deatli  of 
a  person:   Sec.  377. 
Husband  and  wife:   Sees.  370,  371. 
Intervention:    Sec.  387. 

Limitations,  statute  of:  Sees.  312-363.  How 
pleaded:    See.  458. 

Slieriff :  Action  may  be  maintained  against  sher- 
iff for  any  money  come  to  bis  hands,  with  twenty- 
five  per  cent  damages,  and  ten  per  cent  per  month 
interest,  if  he  does  not  pay  over  same  on  demand 
to  person  entitled  thereto:  Folit.  Code,  sec.  4181; 
also  for  two  hundred  dollars  and  all  damages  sus- 
tained by  party  aggrieved  if  Sheriff  do  not  return 
notice  or  process  with  the  necessary  indorsements 
without  delay:  Id.,  sec.  4179;  also  for  neglecting 
or  refusing  to  sell  upon  execution:  Id.,  sec.  4180. 
Action  against  Sheriff  for  escape  or  rescue:  Id., 
sees.  4182,  4183. 

Slander.— Extrinsic  facts  need  not  be  stated:  Sec. 
460. 

Statute,  private,  how  pleaded:    See  sec.  459. 

Stock.— Action  to  recover  stock  sold  for  delin- 
quent assessment:    Sec.  341,  and  note. 

Supplemental  complaint:    Sec.  464. 

Surety,  action  by,  to  compel  principal  to  satisfy 
debt:    Sec.  1050. 

Tenants,  waste  by:    Sec.  732. 

Tenants  in  common,  waste  by:   Sec.  237. 

Timber,  cutting  down  or  injuring:    See  sec.  733. 

Trusts,  enforcement  of:  See  Civ.  Code,  sees.  2215 
et  seq. 

Usage  of  trade:  See  post,  sec.  1870,  subd.  12; 
and  Civ.  Code,  sec.  1644. 

Variance:  See  post,  sees.  469-471. 

Vendor's  lien:   See  Civ.  Code,  sec.  3046. 

Verification  of  pleadings:    Sec.  446. 


§  426  TUB    COMPLAINT.  164 

Vessels,  steamers,  and  boats,  actions  against: 
Sec.  813. 

Waste,  reference  to:    Sec.  732. 

Forfeiture.— Whenever  by  the  terms  of  an  obli- 
gation a  party  thereto  incurs  a  forfeiture,  or  a  loss 
in  the  nature  of  a  forfeiture,  by  reason  of  his  fail- 
ure to  comply  with  its  provisions,  he  may  be  re- 
lieved therefrom  upon  making  full  compensation 
to  the  other  party,  except  in  case  of  a  grossly  neg- 
ligent, willful,  or  fraudulent  breach  of  duty:  Civ. 
Code,  sec.  3275.  Relief  of  a  tenant  from  forfeit- 
ure of  a  lease:    Sec.  1179. 

Liquidated  damages.— Every  contract  by  which 
the  amount  of  damage  to  be  paid  or  other  com- 
pensation to  be  made  for  a  breach  of  an  obliga- 
tion is  determined  in  anticipation  thereof  is  to 
that  extent  void,  except  as  expressly  provided  in 
the  next  section:  Civ.  Code,  sec.  1670.  The  parties 
to  a  contract  may  agree  therein  upon  an  amount 
which  shall  be  presumed  to  be  the  amount  of  dam- 
age sustained  by  a  breach  thereof,  when  from  the 
nature  of  the  case  it  would  be  impracticable  or  ex- 
tremely difhcult  to  fix  the  actual  damage:  Civ. 
Code,  sec.  1671. 

Damages,  persons  sulfering  detriment  may  re- 
cover reasonable.— Every  person  who  suffers  detri- 
ment from  the  unlawful  act  or  omission  of  another 
may  recover  from  the  person  in  fault  a  compensa- 
tion therefor  in  monej',  whicli  is  called  damages: 
Civ.  Code,  sec.  3281.  Damages  must  in  all  cases  be 
reasonable;  and  where  an  obligation  of  any  Ivind 
appears  to  create  a  right  to  unconscionable  and 
grossly  oppressive  damages,  contrary  to  substan- 
tial justice,  no  more  than  reasonable  damages  can 
be  recovered:  Id.,  sec.  3359. 

Damages  on  revoking  submission:  Sec.  1290. — 
Damages  are  exclusive  of  exemplary  damages  and 
interest,   except  where  those  are  expressly  men- 


165  THE   COMPLAINT.  >.  426 

tioued:  Civ.  Code,  sec.  3357.  No  person  can  re- 
cover a  greater  amount  in  damages  for  the  breach 
of  an  obligation  than  he  could  have  gained  by  the 
full  performance  thereof  on  both  sides,  except  in 
the  cases  specified  in  the  articles  on  exemplary 
damages  and  penal  damages,  and  in  the  Civil 
Code,  sees.  3319,  3339,  and  3340:  Civ.  Code,  sec. 
335.S. 

Nominal  damages.— When  a  breach  of  duty  has 
caused  no  appreciable  detriment  to  the  party  af- 
fected, he  may  yet  recover  nominal  damages:  Civ. 
Code,  sec.  3360. 

Remoteness.— As  to  remoteness,  Civ.  Code,  sec. 
3301,  infra. 

Detriment,  definition  of.— Detriment  is  a  loss  or 
harm  suffered  in  person  or  property:  Civ.  Code, 
sec.  3282. 

Prospective  damages.— Damages  may  be  award- 
ed in  a  judicial  proceeding,  for  detriment  resulting 
after  the  commencement  thereof,  or  certain  to  re- 
sult in  the  future:    Civ.  Code,  sec.  3283. 

Peculiar  value,  property  of.— Where  certain  prop- 
erty has  a  peculiar  value  to  a  person  recovering 
damages  for  deprivation  thereof,  or  injury  thereto, 
that  may  be  deemed  to  be  its  value  against  one 
who  had  notice  thereof  before  incurring  a  liability 
to  damages  in  respect  thereof,  or  against  a  willful 
wrongdoer:  Civ.  Code,  sec.  3355. 

Writing,  value  of.— For  the  purpose  of  estimat- 
ing damages  the  value  of  an  instrument  in  writing 
is  presumed  to  be  equal  to  that  of  the  property  to 
which  it  entitles  its  owner:   Civ.  Code,  sec.  3356. 

Interest  on  legacy,  see  Civil  Code,  section  1369, 
As  to  what  is  the  legal  rate:  Civ.  Code,  sec.  1917. 
Ill  an  action  for  the  breach  of  an  obligation  not 
arising  from  contract,  and  in  every  case  of  oppres- 
sion, fraud,  or  malice,  interest  may  be  given,  in 
the  discretion  of  the  jury:    Civ.    Code.  sec.  328S. 


i  426  THE  COMPLAINT.  16S 

Any  legal  rate  of  interest  stipulated  by  a  contract 
remains  cliargeable  after  a  breach  thereof,  as  be- 
fore, until  the  contract  is  superseded  by  a  verdict 
or  other  new  obligation:  Civ.  Code,  sec.  3289.  Ac- 
cepting payment  of  the  whole  principal  as  such 
waives  all  claim  to  interest:  Civ.  Code,  sec.  3290. 
Whenever  a  loan  of  money  is  made,  it  is  presumed 
to  be  made  upon  interest,  unless  it  is  otherwise 
stipulated  at  the  time,  in  writing:  Civ.  Code,  sec. 
1914;  see  also  Id.  1917.  Interest  is  the  compensa- 
tion allowed  by  law,  or  fixed  by  the  parties,  for 
the  use,  or  forbearance,  or  detention  of  money: 
Civ.  Code,  sec.  1915.  When  a  rate  of  interest  is 
prescribed  by  a  law  or  contract,  without  specify- 
ing the  period  of  time  by  which  such  rate  is  to  be 
calculated,  it  is  to  be  deemed  an  annual  rate:  Civ. 
Code,  sec.  191G.  Interest,  agreement  for:  See  Civ. 
Code,  sec.  1917. 

Damages  on  deposit,  measure  of.— A  depositor 
must  indemnify  the  depositary:  1.  For  all  dam- 
age caused  to  him  by  the  defects  or  vices  of  the 
thing  deposited;  and,  2.  For  all  expenses  neces- 
sarily incurred  by  him  about  the  thing,  other  than 
such  as  are  involved  in  the  nature  of  the  under- 
taking:  Civ.  Code,  sec.  1833. 

Insurance:   See  Civ.  Code,  sees.  25,  27. 

Deatli,  damages  for  occasioning:  See  sec.  377, 
ante. 

Current  money,  borrower  to  pay  in.— A  borrower 
of  money,  unless  there  is  an  express  contract  to 
the  contrary,  must  pay  the  amount  due  in  such 
money  as  is  current  at  the  time  when  the  loan  be- 
comes due,  whether  such  money  is  worth  more  or 
less  than  the  actual  money  lent:  Civ.  Code,  sec. 
1913.     See  sec.  667,  post. 

Foreign  bills  of  exchange,  damages  or  dishonor 
of.— For  the  dishonor  of  foreign  bills  of  exchange, 


167  THE   COMPLAINT.  §  426 

the  damages  are  prescribed  by  sections  3235,  3237, 
and  3238  of  the  Civil  Code. 

Real  estate,  covenants,  damages  for  breach  of.— 
The  detriment  caused  by  the  breach  of  a  cove- 
nant of  "seisin,"  of  "right  to  convey,"  of  "war- 
ranty," or  of  "quiet  enjoyment,"  in  a  grant  of  an 
estate  in  real  property,  is  deemed  to  be:  1.  The 
price  paid  to  the  grantor;  or,  if  the  breach  is  par- 
tial only,  such  proportion  of  the  price  as  the  value 
of  tlie  property  affected  by  the  breach  bore  at  the 
time  of  the  grant  to  the  value  of  the  whole  prop- 
erty; 2.  Interest  thereon  for  the  time  during  which 
the  grantee  derived  no  benefit  from  the  property, 
not  exceeding  five  years;  3.  Any  expenses  prop- 
erly incurred  by  the  covenantee  in  defending  his 
possession:  Civ.  Code,  sec.  3304. 

Ileal  estate,  damages  for  not  conveying.— The 
detriment  caused  by  the  breach  of  an  agreement 
to  convey  an  estate  in  real  property  is  deemed  to 
be  the  price  paid  and  expenses  properly  incurred 
in  examining  the  title  and  preparing  the  necessary 
papers,  with  interest  thereon;  but  adding  thereto, 
in  case  of  bad  faith,  the  difference  between  the 
price  agreed  to  be  paid  and  the  value  of  the  estate 
agreed  to  be  conveyed,  at  the  time  of  the  breach, 
and  the  expenses  properly  incurred  in  preparing 
to  enter  upon  the  land:   Civ.  Code,  sec.  3306. 

lieal  estate,  damages  for  not  accepting.— The 
detriment  caused  by  the  breach  of  an  agreement 
to  purchase  an  estate  in  real  property  is  deemed 
to  be  the  excess,  if  any,  of  the  amount  which  would 
have  been  due  to  the  seller,  under  the  contract, 
over  the  value  of  the  property  to  him:  Civ.  Code, 
sec.  3307. 

Goods,  damages  on  breach  of  warranty  of  title 
to.— The  detriment  caused  by  the  breach  of  a  war- 
ranty of  the  title  of  personal  property  sold  is  deem- 
ed to  be  the  value  thereof  to  the  buyer  when  he  is 


5  426  THE    COMPLAINT.  168 

deprived  of  its  possofssiou,  together  with  any  costs 
which  he  has  become  liable  to  pay  in  an  action 
brought  for  the  property  by  the  true  owner:  Civ. 
Code,  sec.  3312. 

Goods,  damages  on  breach  of  warranty  of  qual- 
ity of.— The  detriment  caused  by  the  breach  of  a 
warranty  of  the  quality  of  personal  property  is 
deemed  to  be  the  excess,  if  any,  of  the  value 
which  the  property  would  have  had  at  the  time  to 
which  the  warranty  referred,  if  it  had  been  com- 
plied with,  over  its  actual  value  at  that  time:  Civ. 
Code,  sec.  3313. 

The  detriment  caused  by  the  breach  of  a  war- 
ranty of  the  fitness  of  an  article  of  personal  prop- 
erty for  a  particular  purpose  is  deemed  to  be  that 
which  is  defined  by  the  last  section,  together  with 
a  fair  compensation  for  the  loss  incurred  by  an 
effort  in  good  faitli  to  use  it  for  such  purpose:  Civ. 
Code,  sec.  3314. 

Carrier,  damages  for  omitting  to  carry.— The 
detriment  caused  bj"  the  breach  of  a  carrier's  obli- 
gation to  accept  freight,  messages,  or  passengers, 
is  deemed  to  be  the  difference  between  the  amount 
which  he  had  a  right  to  charge  for  the  carriage 
and  the  amount  A\hich  it  would  be  necessary  to 
pay  for  the  same  service  when  it  ought  to  be  per- 
formed:   Civ.  Code,  sec.  3315. 

Carrier,  damages  for  not  delivering  freight:  Civ. 
Code,  sec.  3316. 

Carrier,  damages  for  delay:   Civ.  Code,  sec.  3317. 

Agent,  damages  for  breach  of  warranty  of  au- 
thority of:   See  Civ.  Code,  sec.  8318. 

]\Iarriage.  damages  for  breach  of  promise  of.— 
The  damages  for  the  breach  of  a  promise  of  mar- 
riage rest  in  the  sound  discretion  of  the  jury:  Civ. 
Code,  sec.  3319. 

Deposit.— The  liability  of  a  depositary  for  negli- 
gence cannot  exceed  the  amount  which  ho  is  in- 


169  THE  COMPLAINT.  §  426 

formed  by  the  depositor,  or  has  reason  to  suppose, 
the  thing  deposited  to  be  worth:  Civ.  Code,  sec. 
1840. 

Libel  or  slander,  damages  on.— In  actions  for  li- 
bel or  slander  defendant  may  justify  and  allege 
mitigating  circumstances,  and  whether  he  prove 
justification  or  not,  he  may  give  in  evidence  the 
mitigating  circumstances:    Sec.  461. 

Mesne  profits.— The  detriment  caused  by  the 
wrongful  occupation  of  real  property  in  cases  not 
embraced  in  sections  3335,  .3344,  and  3345  of  this 
Code  (Civil  Code),  or  section  1174  of  the  Code  of 
Civil  Procedure,  is  deemed  to  be  the  value  of  the 
use  of  the  property  for  the  time  of  such  occui)a- 
tion,  not  exceeding  five  years  next  preceding  the 
commencement  of  the  action  or  proceeding  to  en- 
force the  right  to  damages,  and  the  costs,  if  any, 
of  recovering  the  possession:   Civ.  Code,  sec.  3334. 

Ejectment,  damages  on:  Sec.  427.  Where  plain- 
tiffs right  terminates  during  pendency  of  action, 
plaintiff  may  recover  damages  for  withholding  the 
property:  Sec.  740.  Defendant  may  set  oft'  value 
of  improvements  where  made  under  color  of  title: 
Sec.  741. 

Holding  over  real  propertj^  damages  for.— For 
willfully  holding  over  real  property,  by  a  person 
wlio  entered  upon  the  same  as  guardian  or  trus- 
tee for  an  infant,  or  by  right  of  an  estate  termin- 
able Avith  any  life  or  lives,  after  the  termination  of 
tlie  trust  or  particular  estate,  without  the  consent 
of  the  party  immediately  entitled  after  such  termi- 
nation, the  measure  of  the  damages  is  the  value  of 
tlio  profits  received  during  such  holding  over:  Civ. 
(^od^,  sec.  333.5. 

Conversion  of  goods,  damages  for. — Tlie  detri- 
ment caused  by  the  wrongful  conversion  of  per- 
sonal property  is  presumed  to  be:   1.   The  value  of 

Code  Civ.   Proc— lo. 


§  426  THE   COMPLAINT.  170 

the  property  at  the  time  of  the  conversion,  with 
the  interest  from  that  time;  and  2.  A  fair  com- 
pensation for  the  time  and  money  properly  ex- 
pended in  pursuit  of  the  property:  Civ.  Code,  sec. 
3330. 

Seduction.— The  damages  for  seduction  rest  in 
the  sound  discretion  of  the  jury:  Civ.  Code,  sec. 
3339.  An  unmarried  woman  may  prosecute  as 
plaintiff  an  action  for  her  own  seduction,  and  may 
recover  pecuniary  or  exemplary  damages:  Sec. 
374. 
Animals,  injuries  to:  See  Civ.  Code,  sec.  3340. 
Penal  damages.— Waste  by  guardians,  tenants 
for  life  or  years,  joint  tenants,  or  tenants  in  com- 
mon: Sec.  731,  post.  Wasting  or  embezzling  es- 
tate of  deceased:  Sees.  14.58-14()0.  Executor  fraud- 
ulently selling  real  property:    Sec.  1572. 

Holding  over. — Damages  for  forcible  entry  and 
detainer:  See  sec.  1174.  Forcible  or  unlawful 
entry  uijon  or  detention  of  any  building  or  cul- 
tivated real  property:  See.  735;  see  also  as  to 
forcible  entry,  or  forcible  or  unlawful  detainer, 
sec.  1174.  If  any  tenant  give  notice  of  his  in- 
tention to  quit  the  premises,  and  does  not  de- 
liver up  the  possession  at  the  time  specified  in  the 
notice,  he  must  pay  to  the  landlord  treble  rent 
during  the  time  he  continues  in  possession  after 
such  notice:  Civ.  Code,  sec.  3344.  If  any  tenant, 
or  any  person  in  collusion  with  the  tenant,  holds 
over  any  lands  or  tenements  after  demand  made 
and  one  month's  notice,  in  writing  given,  requir- 
ing the  possession  thereof,  such  person  holding 
over  must  pay  to  the  landlord  treble  rent  during 
the  time  he  continues  in  possession  after  such  no- 
tice:   Civ.  Code,  sec.  3345. 

For  wrongful  injuries  to  timber,  trees,  or  un- 
derwood upon  the  land  of  another,  or  removal 
thereof,  the  measure  of  damages  is  three  times 


171  THE    COMPLAINT.  §  427 

such  a  sum  as  would  compensate  for  the  actual 
detriment,  except  where  the  trespass  was  casual 
and  involuntary,  or  committed  under  the  belief 
that  the  land  belonged  to  the  trespasser,  or  where 
the  wood  was  talien  by  the  authority  of  highway 
officers  for  the  purposes  of  a  highway;  in  which 
ca,se  the  damages  are  a  sum  equal  to  the  actual 
detriment:  Civ.  Code,  sec.  3346.  For  cutting  down 
or  carrying  off  wood,  underwood,  trees,  or  timber, 
or  girdling  or  otherwise  injuring  trees  or  timber,, 
on  the  land  of  another  person,  or  on  the  street  or 
highway  in  front  of  any  person's  house,  village  or 
city  lot,  or  cultivated  grounds,  or  on  the  commons 
or  public  grounds  of  any  citj^  or  town,  or  on  the 
street  or  highway  in  front  thereof:  Sec.  733.  The 
wording  of  section  733  more  resembles  the  woitiing 
of  sections  735  and  1174,  the  sections  as  to  forcible 
entry,  etc.,  than  that  as  to  waste,  section  732. 

Dueling. — If  any  person  slays  or  permanently 
disables  another  person  in  a  duel  in  this  State,  the 
slayer  must  provide  for  the  maintenance  of  the 
widow  or  wife  of  the  person  slain  or  permanently 
disabled,  and  for  the  minor  children,  in  such  man- 
ner and  at  such  cost,  either  by  aggregate  compen- 
sation in  damages  to  each,  or  by  a  monthly,  quar- 
terly, or  annual  allowance,  to  be  determined  by 
the  court:  Civ.  Code,  sec.  3347.  If  any  person 
slays  or  permanently  disables  another  person  in  a 
duel  in  this  State,  the  slayer  is  liable  for  and 
must  pay  all  debts  of  the  person  slain  or  perma- 
nently disabled:  Id.,  sec.  3348. 

Specific  and  preventive  relief.— Specific  or  pre- 
ventive relief  may  be  given  in  cases  specified  in 
the  Civil  Code,  sections  33G6-3423  and  in  no  others. 

§  427.  The  plaintiff  may  unite  several  causes  of 
action  in  the  same  complaint,  where  they  all  arise 
out  of: 


§  427  THE   COMPLAINT.  172 

1.  Contracts,  express  or  implied; 

2.  Claims  to  recover  specific  real  property,  with 
or  without  damages  for  the  withholding  thereof, 
or  for  waste  committed  thereon,  and  the  rents  and 
profits  of  the  same; 

3.  Claims  to  recover  specific  personal  property, 
with  or  without  damages  for  the  withholding 
thereof; 

4.  Claims  against  a  trustee  by  virtue  of  a  con- 
tract or  by  operation  of  laAv; 

5.  Injuries  to  character; 

6.  Injuries  to  person; 

7.  Injuries  to  property. 

The  causes  of  action  so  united  must  all  belong  to 
one  only  of  these  classes,  and  must  affect  all  the 
parties  to  the  action,  and  not  require  different 
places  of  trial,  and  must  be  separately  stated;  but 
an  action  for  malicious  arrest  and  prosecution,  or 
either  of  them,  may  be  united  with  an  action  for 
either  an  injury  to  character  or  to  the  person. 

Replevin:    See  post,  sec.  oOJ>. 


173  DEMl^RER   TO   COMPLAINT.  §  430 

CHAPTER  III. 

DEMURRER  TO   THE   COMPLAINT. 

§  430.     When  defendant  may  demur. 

}  431.     Demurrer  must  specify,  etc.     May  be  taken  to  part. 

May  answer  and  demur  at  same  time. 
§  432.     What    proceedings    are    to    be    had    when    complaint 

amended. 
§  433.     Objection  not  appearing  on  complaint,  may  be  taken 

by  answer. 
§  434.     Objections,   when   deemed  waived. 

§  430.  The  defeiidant  maj^  demur  to  the  com- 
plaint within  the  time  required  in  the  summons  to 
answer,  when  it  appears  upon  the  face  thereof, 
either : 

1.  That  the  court  has  no  jurisdiction  of  the  per- 
son of  the  defendant,  or  the  subject  of  the  action; 
or, 

2.  That  the  plaintiff  has  not  legal  capacity  to 
sue;  or, 

3.  That  there  is  another  action  pending  between 
tlie  same  parties  for  the  same  cause;  or, 

4.  That  there  is  a  defect  or  misjoinder  of  par- 
ties plaintiff  or  defendant;  or, 

5.  That  several  causes  of  action  have  been  im- 
properly united;  or, 

G.  That  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action;  or, 

7.  That  the  complaint  is  ambiguous,  unintelligi- 
l)le,  or  uncertain. 

General  and  special  demurrer:  See  sec.  431,  in- 
fra. 

Demurring  and  ansAvering  at  same  time:  See 
sees.  431,  441. 

Serving  demurrer:    See  sec.  405. 

Judgment  on  demurrer:    Sec.  G3G. 

Demurrer  is  an  appearance:    See  sec.  1014.  ]»<>st. 


§§  431-434  DEMURRER    TO    COMPLAINT.  174 

Waiving  objections  by  not  demurring:    Sec.  434. 

Joinder  of  plaintiffs:  Sees.  378,  381.  Tenants  m 
common,  etc.:  Sec.  381.  Necessary  party  refusing 
to  join  as  plaintiff  may  be  made  a  defendant:  Sec. 
382. 

General  and  special  demurrer:  See  sec.  431,  in- 
fra. 

§  431.  The  demurrer  must  distinctly  specify  the 
grounds  upon  which  any  of  the  objections  to  the 
complaint  are  taken.  Unless  it  do  so,  it  may  be 
disregarded.  It  may  be  taken  to  the  whole  com- 
plaint or  to  any  of  the  causes  of  action  stated 
therein,  or  the  defendant  may  demur  and  answer 
at  the  same  time. 

§  432.  If  the  complaint  is  amended,  a  copy  of 
the  amendments  must  be  filed,  or  the  court  may, 
in  its  discretion,  require  the  complaint,  as  amend- 
ed, to  be  filed,  and  a  copy  of  the  amendments,  or 
amended  complaint,  must  be  served  upon  the  de- 
fendants affected  thereby.  The  defendant  must 
answer  the  amendment  or  the  complaint,  as 
amended,  within  ten  days  after  service  thereof,  or 
such  other  time  as  the  court  may  direct,  and  judg- 
ment by  default  may  be  entered  upon  failure  to 
answer,  as  in  other  cases.  [Amendment  approved 
March  9,  1880;  Amendments  1880,  2.  In  eft^ect 
March  9,  1880.] 
Amendment— generally,  sees.  472,  473. 

§  433.  When  any  of  the  matters  enumerated  in 
«ection430  do  not  appear  upon  the  face  of  the  com- 
plaint, the  objection  may  be  taken  by  answer. 

§  434.  If  no  objection  be  taken,  either  by  de- 
murrer or  answer,  the  defendant  must  be  deemed 
to  have  waived  the  same,  excepting  only  the  ob- 
jection to  the  jurisdiction  of  the  court,  and  the  ob- 
jection that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 


175  THE   ANSWER.  §  437 


CHAPTER  IV. 

THE  ANSWER. 

§  437.    Answer,    what   to   contain. 

§  438.    When  counterclaim  may  be  set  up. 

§  439.    When  defendant  omits  to  set  up  counterclaim. 

§  440.     Counterclaim   not  barred  by  death  or  assignment. 

§  441.    Answer  may  contain  several  grounds  of  defense. 

Defendant    may   answer   part   and    demur   to    part 

of  complaint. 
§  442.     Cross-complaint. 

§  437.  The  answer  of  the  defendant  shall  con- 
tain: 

1.  A  general  or  specific  denial  of  the  material 
allegations  of  the  complaint  controverted  by  the 
defendant; 

2.  A  statement  of  any  new  matter  constituting 
a  defense  or  counter-claim.  If  the  complaint  be 
verified,  the  denial  of  each  allegation  controverted 
must  be  specific,  and  be  made  positively,  or  ac- 
cording to  the  information  and  belief  of  the  de- 
fendant. If  the  defendant  has  no  information  or 
belief  upon  the  subject  sufficient  to  enable  him  to 
answer  an  allegation  of  the  complaint,  he  may  so 
state  in  his  answer,  and  place  his  denial  on  that 
ground.  If  the  complaint  be  not  verified,  a  gen- 
eral denial  is  sutticient,  but  only  puts  in  issue  the 
material  allegations  of  the  complaint.  [Amend- 
ment approved  March  24,  1874;  Amendments  1873- 
4,  300.    In  effect  July  1,  1874.] 

Pleas  in  abatement:    See  ante,  sec.  430. 
Answer  in  particular  cases:   See  sec.  426. 
Account  demanding  items  of:    Sec.  454. 
Amendment:    Sees.  472,  473. 
Appearance,  answering  is:    Sec.  1014. 
Assignment  of  chose  in  action:    Sec.  368. 


§  438  THE    ANSWER.  176 

Claim  aud  delivery.— Defendant  may  claim  a  re- 
tm-n  of  the  property:    Sec.  067. 

Conditions  precedent  in  contract,  pleading  per- 
formance of:    Sec.  457. 

Counter-claim:    Sees.  438-441. 

Cross-complaint:    Sec.  442. 

Death  of  party:    Sec.  385. 

Disability  of  party:    Sec.  385. 

Disclaimer:    See  sec.  739,  post. 

Ejectment.— Defendant  may  set  off  against  dam- 
ages value  of  improvements  made  under  color  of 
title:  Sec.  741, 

Errors  and  defects  to  be  disregarded:   Sec.  475. 

Estoppel:   Sec.  1908. 

Gold  coin,  etc..  allegations  as  to  money  being 
payable  in,  should  be  denied:    Sec.  667. 

Husband  and  wife:    Sees.  370,  371. 

Judgment  or  other  determination  of  a  court,  oflSi- 
cer,  or  board,  pleading:  Sees.  456,  1908. 

Libel. — Defendant  may  justify  and  allege  miti- 
gating circumstances:    Sec.  461. 

Mortgage:    Sec.  726. 

Quiet  title,  action  to.— Defendant  maj'  disclaim: 
Sec.  739. 

Slander:    Sec.  461. 

Statute,  private.— Pleading:  Sec.  459. 

Striking  out:    Sec.  453. 

Supplemental  ansAver:    Sec.  464. 

Time  to  answer.— Extension  of:    Sec.  1054. 

Writing.— Setting  forth  an  ansAA'er,  effect  of: 
Sees.  448.  449. 

f  438.  The  counler-claim  mentioned  in  the  last 
section  must  be  one  existing  in  favor  of  a  defend- 
ant and  against  a  plaintiff  between  whom  a  sev- 
eral judgment  might  be  had  in  the  action,  and 
arising  out  of  one  of  the  following  causes  of  ac- 
tion: 


177  THE   ANSWER.  §§  439-441 

1.  A  cause  of  action  arisiug-  out  of  the  trausac- 
tion  set  forth  in  the  complaint  as  the  foundation 
of  the  plaintiff's  claim,  or  connected  with  the  sub- 
ject of  the  action: 

2.  In  an  action  arising  upon  contract:  any  other 
!      cause  of  action  arising  also  upon  contract,  and  ex- 
isting at  the  commencement  of  the  action. 

Dismissing  action  where  counter-claim:   Sec.  581. 
\        Omission  to  set  up  counter-claim  prevents  future 
action  thereon:    Sec.  439. 
Compensated,  cross-demands  deemed:   Sec.  441. 

p       §  439.    If  the  defendant  omit  to  set  up  a  coun- 
[/  ter-claim  in  the  cases  mentioned  in  the  first  subdi- 
vision of  the  last  section,  neither  he  nor  his  as- 
signee can  afterward  maintain  an  action  against 
the  plaintiff  therefor. 

§  440.  When  cross-deluands  have  existed  be- 
tween persons  under  such  circumstances  that,  if 
one  had  brought  an  action  against  the  other,  a 
counter-claim  could  have  been  set  up,  the  two  de- 
mands shall  be  deemed  compensated,  so  far  as 
they  equal  each  other,  and  neither  can  be  deprived 
of  the  benefit  thereof  by  the  assignment  or  death 
of  the  other.  [Amendment  approved  ^Nlarch  24, 
1874:  Amendments  18T:]-4,  300.  In  effect  July  1, 
1874.] 

§  441.  The  defendant  may  set  forth  by  answer 
as  many  defenses  and  counter-claims  as  he  may 
have.  They  must  be  separately  stated,  and  the 
several  defenses  must  refer  to  the  causes  of  ac- 
tion which  they  are  intended  to  answer,  in  a  man- 
ner by  which  they  may  be  intelligibly  distin- 
guished. The  defendant  may  also  answer  one  or 
more  of  the  several  causes  of  action  stated  in  the 
complaint,  and  demur  to  the  residue. 


§§  442,  444  DEMURRER   TO   ANSWER.  ITS 

§  442.  Whenever  the  defendant  seeks  affirma- 
tive relief  against  any  party,  relating  to  or  de- 
pending upon  the  contract  or  transaction  upon 
vrhich  the  action  is  brought,  or  affecting  the  prop- 
erty to  which  the  action  relates,  he  may,  in  addi- 
tion to  his  answer,  file  at  the  same  time,  or  by 
permission  of  the  court  subsequently,  a  cross-com- 
plaint. The  cross-complaint  must  be  served  upon 
the  parties  affected  thereby,  and  such  parties  may 
demur  or  answer  thereto  as  to  the  original  com- 
plaint. [New  section  approved  March  24,  1874; 
Amendments  1873-4,  301.    In  effect  July  1,  1874.] 

Answer  to  cross-complaint:    See  sees.  437-441. 

Original  complaint:   Sees.  426,  427. 

Dismissing  action,  where  counter-claim:  Sec. 
581. 

CHAPTER  V. 

DEMURRER  TO  ANSW^ER. 

§  443.     When  plaintiff  may  demur  to  answer. 
§  444.     Grounds  of  demurrer. 

§  443.  The  plaintiff  may,  within  the  same 
length  of  time  after  service  of  the  answer  as  the 
defendant  is  allowed  to  answer  after  service  of 
summons,  demur  to  the  answer  of  the  defendant, 
or  to  one  or  more  of  the  several  defenses  or 
counter-claims  set  up  in  the  answer.  [Amendment 
approved  March  24,  1874;  Amendments  1873-4,  301. 
In  effect  July  1,  1874.] 

Demurrer  to  complaint:  Sec.  430. 

Service  of  demuiTer:    Sec.  46-5. 

Time  to  demur,  extending:    Sec.  1054. 

Time  to  answer  when  demurrer  overruled  begins 
to  run  from  service  of  notice  of  decision:   Sec.  476, 

§  444.  The  demurrer  may  be  talcen  upon  one  or 
more  of  the  following  grounds: 


179  VERIFICATION   OF   PLEADINGS.  §  446 

1.  That  several  causes  of  counter-claim    liave 
beeu  improperly  joined; 

2.  That  the  answer  does  not  state  facts  suffi- 
cient to  constitute  a  defense  or  counter-claim; 

3.  That  the  answer  is  ambiguous,  unintelligible, 
or  uncertain. 

Grounds  of  demurrer:    See  sec.  430. 


CHAPTER  VI. 

VERIFICATION    OF    PLEADINGS. 

§  446.    Verification   of  pleadings. 

§  447.  Copy  of  written  instrument  contained  in  complaint 
admitted,   unless  answer  is  verified. 

§  448.  When  defense  is  founded  on  written  instrument  set 
out  in  answer,  its  execution  admitted,  unless  de- 
nied by  plaintiff,   under  oath. 

§  449.  Exceptions'  to  rules  prescribed  by  two  preceding  sec- 
tions. 

§  446.    Every  pleading  must  be  subscribed  by 
the  party  or  his  attorney;  and  when  the  complaint 
is  verified,  or  when  the  State,  or  any  officer  of  the 
State,  in  his  official  capacity,  is  plaintiff,  the  an- 
swer must  be  verified,  unless  an  admission  of  the 
truth  of  the  complaint  might  subject  the  party  to 
a  criminal  prosecution,  or,  unless  an  officer  of  the 
State,  in  his  official  capacity,  is  defendant.     In  all 
cases  of  a  verification  of  a  pleading,  the  affidavit 
of  the  party  must  state  that  the  same  is  true  of  his 
OAvn  Ivnowledge,  except  as  to  the  matters  which 
are  therein  stated  on  his  information  or  belief,  and 
as  to  those  matters  that  he  believes  it  to  be  true; 
and  where  a  pleading  is  verified,  it  must  be  by  the 
affidavit  of  a  party,  unless  the  parties  are  absent 
from  the  county,  where  the  attorney  resides,  or 
from  some  cause  unable  to  verify  it.  or  the  facts 
are  within  the  knowledge  of  his  attorney  or  other 
person  verifying  the  same.    When  the  pleading  is 


§§  417-449        VERIFICATION  OF  PLEADINGS.  180 

verified  by  the  attorney,  or  any  other  person  ex- 
cept one  of  the  parties,  he  must  set  forth  in  the 
affidavit  the  reasons  why  it  is  not  made  by  one  of 
the  parties.  AVhen  a  corporation  is  a  party,  the 
verification  may  be  made  by  any  officer  thereof. 

Attorneys'  power  to  bind  client:    Sec.  283. 

Yeritying  accusation  for  disbarring  attorney: 
See  sec.  291,  ante. 

§  447.  When  an  action  is  brought  upon  a  writ- 
ten instrument,  and  the  complaint  contains  a  copy 
of  such  instrument,  or  a  copy  is  annexed  thereto, 
the  genuineness  and  due  execution  of  such  instru- 
ment are  deemed  admitted,  unless  the  answer 
denying  the  same  be  verified. 

§  448.  When  the  defense  to  an  action  is 
founded  on  a  written  instrument,  and  a  copy 
thereof  is  contained  in  the  ansAver,  or  is  annexed 
thereto,  the  genuineness  and  due  execution  of  such 
instrument  are  deemed  admitted  unless  the  plain- 
tifl!  file  with  the. clerk,  within  ten  days  after  re- 
ceiving a  copy  of  the  answer,  an  affidavit  denj'ing 
the  same,  and  serve  a  copy  thereof  on  the  defend- 
ant. [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  301.    In  effect  July  1,  1874.] 

§  449.  But  the  execution  of  the  instrument 
mentioned  in  the  two  preceding  sections  is  not 
deemed  admitted  by  a  failure  to  deny  the  same 
under  oath,  if  the  party  desiring  to  controvert  the 
same  is,  upon  demand,  refused  an  inspection  of  the 
original.  Such  demand  must  be  in  writing,  served 
by  copy,  upon  the  adverse  party  or  his  attorney, 
and  filed  with  the  papers  in  the  case.  [Amend- 
ment approved  April  16.  1880:  Amendments  1880. 
111.  In  effect  April  in.  1880.1 
Inspection  of  writrngs,  order  for:    Sec.  1000. 


181  GENERAL  RULES   OF  PLEADING  §§  iy2-[r,4 

CHAPTER  VII. 

GENERAL  RULES  OF  PLEADING. 

§  452.    Pleadings  to  be  liberally  construed. 

§  453.    Sham  and  irrelevant  answers,  etc.,  may  be  stricken 

out. 
§  454.     How  to  state  an  account  in  pleadings. 
§  4.55.     Description  of  real  property  in  a  pleading. 
§  456.     Judgments,   how  pleaded. 
§  457.     Conditions  precedent,   how  to  be  pleaded. 
§  458.     Statute  of  Limitations,  how  pleaded. 
§  459.     Private    statutes,    how    pleaded. 
§  460.     Libel    and    slander,    how    stated    in    complaint.    Not 

necessary  to  allege   or   prove   special   damages. 
§  461.     Answer  in  such  cases. 
§  462.    Allegation   not     denied,    when     to   be   deemed     true. 

When  to  be  deemed  controverted. 
§  463.    A  material  allegation   defined. 
§  464.     Supplemental    complaint    and    answer. 
§  465.    Pleadings  subsequent  to  complaint  must  be  filed  and 

served. 

§  452.  In  the  construction  of  a  pleading,  for  the 
purpose  of  determining  its  effect,  its  allegations 
must  be  liberally  construed,  vrith  a  view  to  sub- 
stantial justice  between  the  parties. 

§  453.  Sham  and  irrelevant  answers,  and  irrele- 
vant and  redundant  matter  inserted  in  a  pleading, 
may  be  stricken  out,  upon  such  terms  as  the  court 
may,  in  its  discretion,  impose. 

§  454.  It  is  not  necessary  for  a  party  to  set 
forth  in  a  pleading  the  items  of  an  account  therein 
alleged,  but  he  must  deliver  to  the  adverse  party, 
within  five  days  after  a  demand  thereof  in  writing, 
a  copy  of  the  account,  or  be  precluded  from  giving 
evidence  thereof.  The  court  or  judge  thereof  may 
order  a  further  account  when  the  one  delivered  is 
too  general  or  is  defective  in  any  particular. 
[Amendment  approved  March  9,  18S0;  Amend- 
ments 1880,  2.    In  efieect  March  9,  1880.] 

Code  Civ.  Proc— 16. 


§§  455-459    GENERAL    RULES    OP    PLEADING.  182 

§  455.  In  an  action  for  the  recovery  of  real 
property,  it  must  be  described  in  the  complaint 
with  such  certainty  as  to  enable  an  officer  upon 
execution  to  identify  it. 

§  456.  In  pleading  a  judgment,  or  other  deter- 
mination of  a  court,  officer,  or  board,  it  is  not 
necessary  to  state  the  facts  conferring  jurisdic- 
tion, but  such  judgment  or  determination  may  be 
stated  to  have  been  duly  given  or  made.  If  such 
allegation  be  controverted,  the  party  pleading 
must  establish  on  tlie  trial  the  facts  conferring 
jurisdiction. 

Judgment  as  an  estoppel:  See  post,  sec.  1908. 

§  457.  In  pleading  the  performance  of  condi- 
tions precedent  in  a  contract,  it  is  not  necessary  to 
state  the  facts  showing  such  performance,  but  it 
may  be  stated  generally  that  the  party  duly  per- 
formed all  the  conditions  on  his  part,  and  if  such 
allegations  be  controverted,  the  party  pleading 
must  establish,  on  the  trial,  the  facts  showing  such 
performance. 

Conditions  precedent,  interpretation  of:  See  Civ. 
Code,  sees.  1437  et  seq. 

§  458.  In  pleading  the  Statute  of  Limitations;  it 
is  not  necessary  to  state  the  facts  showing  the  de- 
fense, but  it  may  be  stated  generally  that  the 
cause  of  action  is  barred  by  the  provisions  of  sec- 
tion    (giving  the  number  of  the  section  and 

subdivision  thereof,  if  it  is  so  divided,  relied  upon) 
of  the  Code  of  Civil  Procedure;  and  if  such  allega- 
tion be  controverted,  the  party  pleading  must  es- 
tablish, on  the  trial,  the  facts  showing  that  the 
cause  of  action  is  so  barred. 

§  459,  In  pleading  a  private  statute,  or  a  right 
derived  therefrom,  it  is  sufficient  to  refer  to  such 
statute  by  its  title  and  the  day  of  its  passage. 


1S3  GENERAL  RULES  OF  PLEADING.       §§  4G0-464 

§  460.  In  an  action  for  libel  or  slander,  it  is  not 
necessary. to  state  in  the  complaint  any  extrinsic 
facts  for  the  purpose  of  showing  the  application 
to  the  plaintiff  of  the  defamatory  matter  out  of 
which  the  cause  of  action  arose;  but  it  is  sufficient 
to  state,  generally,  that  the  same  was  published 
or  spoken  concerning  the  plaintiff;  and  if  such  al- 
legation be  controverted,  the  plaintiff  must  estab- 
lish, on  the  trial,  that  it  was  so  published  or 
spoken. 

§  461.  In  the  actions  mentioned  in  the  last  sec- 
tion, the  defendant  may,  in  his  answer,  allege  both 
the  truth  of  the  matter  charged  as  defamatorj^ 
and  any  mitigating  circumstances,  to  reduce  the 
amount  of  damages;  and  whether  he  prove  the  jus- 
tification or  not,  he  may  give  in  evidence  the  miti- 
gating circumstances. 

See  Civ.  Code,  sees.  45  et  seq. 

§  462.  Every  material  allegation  of  the  com- 
plaint, not  controverted  by  the  answer,  must,  for 
the  purposes  of  the  action,  be  taken  as  true;  the 
statement  of  any  new  matter  in  the  answer,  in 
avoidance  or  constituting  a  defense  or  counter- 
claim, must,  on  the  trial,  be  deemed  controverted 
by  the  opposite  party. 

Cross-complaint  must  be  replied  to:  See  ante, 
sees.  442.  438. 

Answer:   See,  generally,  ante,  sec.  437. 

§  463.  A  material  allegation  in  a  pleading  is 
one  essential  to  the  claim  or  defense,  and  which 
could  not  be  stricken  from  the  pleading  without 
leaving  it  insutlicieut. 

Immaterial  allegations  need  not  be  answered: 
See  sec.  4G2. 

§  464.    The  plaintiff  and  defendant,  respective- 


§§  465,  469  VARIANCE-MISTAKES.  184 

ly,  may  be  allowed,  on  motion,  to  make  a  supple- 
mental complaint  or  answer,  alleging  facts  ma- 
terial to  the  case  occurring  after  the  former  com- 
plaint or  answer. 

Amending  to  pleadings:  Se  sec.  472. 

§  465.  All  pleadings  subsequent  to  the  com- 
plaint must  be  filed  with  the  clerlv,  and  copies 
thereof  served  upon  the  adverse  party  or  his  at- 
torney. [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  401.    In  effect  July  1,  1874.] 

Service  of  papers:  Sec.  1011  et  seq. 

Amendment  pleadings,  service  of:  See  sees.  472, 
432. 

Extending  time  to  serve  papers:  See  post,  sec. 
1054. 

CHAPTER  VIII. 

VARIANCE— MISTAKES    IN   PLEADINGS   AND    AMEND- 
MENTS. 

§  469.    Material  variances,  how  provided  for. 

§  470.    Immaterial  variance,   how  provided  for. 

§  471.    "What  not  to  be  deemed  a  variance. 

§  472.     Amendments   of   course,    and   effect  of   demurrer. 

§  473.     Amendments  by  the  court.     Enlarging  time  to  plead 

and  relieving  from  judgments,  etc. 
§  474.     Suing  a  party  by  a  fictitious  name,  when  allowed. 
§  475.     No  error  or   defect  to   be   regarded   unless  it  affects 

substantial  rights. 
§  476.    Time  to  amend  or  answer,  running  of. 

§  469.  No  variance  between  the  allegation  in  a 
pleading  and  the  proof  is  to  be  deemed  material, 
unless  it  has  actually  misled  the  adverse  party  to 
his  prejudice  in  maintaining  his  action  or  defense 
upon  the  merits.  AYlienever  it  appears  that  a 
party  has  been  so  misled,  the  court  may  order  the 
pleadings  to  be  amended,  upon  such  terms  as  may 
be  just.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4.  302.    In  effect  July  1,  1874.] 


185  VARIANCE— MISTAKES.  §§  470-472 

Immaterial  variance:   Sec.  470. 

Variance,  fatal:  Sec.  471. 

Immaterial  errors,  generally:  See  post,  sec.  475. 

§  470.  Where  the  variance  is  not  material,  as 
provided  in  the  last  section,  the  court  may  direct 
the  fact  to  be  found  according  to  the  evidence,  or 
may  order  an  immediate  amendment,  without 
costs. 

Variance,  material:   Sec.  469;  fatal:   Sec.  471. 

§  471.  Where,  Jiowever,  the  allegation  of  the 
claim  or  defense  to  which  the  proof  is  directed,  is 
unproved,  not  in  some  particular  or  particulars 
only,  but  in  its  general  scope  and  meaning,  it  is 
not  to  be  deemed  a  case  of  variance,  within  the 
last  two  sections,  but  a  failure  of  proof. 

Proof,  generally:    Sees.  1824,  1869. 

Proof,  failure  of— dismissal  for:  Sec.  581,  subd.  5. 

§  472.  Any  pleading  may  be  amended  once  by 
the  party  of  course,  and  without  costs,  at  any  time 
before  answer  or  demurrer  filed,  or  after  demur- 
rer and  before  the  trial  of  the  issue  of  law  thereon, 
by  filing  the  same  as  amended,  and  serving  a  copy 
on  the  adverse  party,  who  may  have  ten  days 
thereafter  in  which  to  answer  or  demur  to  the 
amended  pleading.  A  demurrer  is  not  waived  by 
filing  an  answer  at  the  same  time;  and  when  the 
demurrer  to  a  complaint  is  overruled,  and  there  is 
no  answer  filed,  the  court  may,  upon  such  terms 
as  may  be  just  allow  an  answer,  to  be  filed.  If  a 
demurrer  to  the  answer  be  overruled,  the  facts  al- 
leged in  the  answer  must  be  considered  as  denied 
to  the  extent  mentioned  in  section  462.  [Amend- 
ment approved  March  24,  1874;  Amendments  1873- 
'4,  302.    In  effect  July  1,  1874.] 

Complaint,  amended— filing:    Sec.  432. 


§  473  VARIANCE— MISTAKES.  186 

Answer  no  waiver  of  demurrer:    See  sec.   481, 
ante. 
Fictitious  party:    See,  generally,  sec.  474,  post. 

§  473.  The  court  may,  in  furtherance  of  justice, 
and  on  such  terms  as  may  be  proper,  allow  a  party 
to  amend  any  pleading  or  proceeding  by  adding  or 
striking  out  the  name  of  any  party,  or  by  correct- 
ing a  mistake  in  the  name  of  a  party,  or  a  mis- 
take in  any  other  respect;  and  may,  upon  like 
terms,  enlarge  the  time  for  answer  or  demurrer. 
The  court  may  likewise,  in  its  discretion,  after  no- 
tice to  the  adverse  party,  allow,  upon  such  terms 
as  may  be  just,  an  amendment  to  any  pleading  or 
proceeding  in  other  particulars;  and  may  upon  like 
terms  allow  an  answer  to  be  made  after  the  time 
limited  by  this  Code;  and  may,  also,  upon  such 
terms  as  may  be  just,  relieve  a  party  or  his  legal 
representative  from  a  judgment,  order,  or  other 
proceeding  taken  against  him  through  his  mistake, 
inadvertence,  surprise,  or  excusable  neglect;  pro- 
vided, that  application  therefor  be  made  within  a 
reasonable  time,  but  in  no  case  exceeding  six 
months  after  such  judgment,  order,  or  proceeding 
was  taken.  When  from  any  cause  the  summons 
in  an  action  has  not  been  personally  served  on 
the  defendant,  the  court  may  allow,  on  such  terms 
as  may  be  just,  such  defendant  or  his  legal  repre- 
sentative, at  any  time  within  one  year  after  the 
rendition  of  any  judgment  in  such  action,  to  an- 
swer to  the  merits  of  the  original  action.  When, 
in  an  action  to  recover  the  possession  of  personal 
property,  the  person  making  any  affidavit  did  not 
truly  state  the  value  of  the  property,  and  the  offi- 
cer taking  the  property,  or  the  sureties  on  any 
bond  or  undertaking,  is  sued  for  taking  the  same, 
the  officer  or  sureties  may  in  their  answer  set  up 
the  true  value  of  the  property,  and  that  the  persoii 


187  VARIANCE— MISTAKES.  §§  474,  475 

in  whose  behalf  said  affidavit  was  made  was  en- 
titled to  the  possession  of  the  same  when  said  affi- 
davit was  made,  or  that  the  value  in  the  affidavit 
stated  was  inserted  by  mistake,  the  court  shall  dis- 
regard the  value  as  stated  in  the  affidavit,  and  give 
judgment  according  to  the  right  of  possession  of 
said  property  at  the  time  the  affidavit  was  made. 
[Amendment  approved  March  9,  1880;  Amend- 
ments 1880,  2.  In  effect  March  9,  1880.] 
See  sec.  585,  post. 

§  474.  When  the  plaintiff  is  ignorant  of  the 
name  of  a  defendant,  he  must  state  that  fact  in 
the  complaint,  and  such  defendant  may  be  desig- 
nated in  any  pleading  or  proceeding  by  any  name, 
and  when  his  true  name  is  discovered,  the  pleading 
or  proceeding  must  be  amended  accordingly. 

§  475.  The  court  must,  in  every  stage  of  an  ac- 
tion, disregard  any  error,  improper  ruling,  instruc- 
tion, or  defect,  in  the  pleadings  or  proceedings 
which,  in  the  opinion  of  said  court,  does  not  affect 
the  substantial  rights  of  the  parties.  No  judg- 
ment, decision,  or  decree  shall  be  reversed  or  af- 
fected by  reason  of  any  error,  ruling,  instruction, 
or  defect,  unless  it  shall  appear  from  the  record 
that  such  error,  ruling,  instruction,  or  defect  was 
prejudicial,  and  also  that  by  reason  of  such  error, 
ruling,  instruction,  or  defect,  the  said  party  com- 
plaining or  appealing  sustained  and  suffered  sub- 
stantial injury,  and  that  a  different  result  w^ould 
have  been  probable  if  such  error,  ruling,  instruc- 
tion, or  defect  had  not  occurred  or  existed.  There 
shall  be  no  presumption  that  error  is  prejudicial, 
or  that  injury  was  done  if  error  is  shown.  [Ap- 
proved February  2G,  1897;  Stats.  1897,  c.  47.  In 
effect  immediately.] 


§§  475,  476  VARIANCE— MISTAKES.  188 

§  476.  When  a  demurrer  to  any  pleading  is  sus- 
tained or  overruled,  and  time  to  amend  or  answer 
is  given,  the  time  so  given  runs  from  the  service 
of  notice  of  the  decision  or  order.  [Amendment, 
approved  ISIarch  24,  1874;  Amendments  1873-4,  304. 
In  effect  July  1,  1874.] 

Time  to  answer:  Sees.  432,  472,  473. 

Notice,  service  of:  Sec.  1010  et  seq. 


TITLE  VII. 

OF    THE    PROVISIONAL    REMEDIES    IN    CIVIL  ACTIONS. 

Oliapter  I.    Arrest  and  Bail. 

II.    Claim  and  Delivery  of  Personal  Prop- 
erty. 
III.    Injnnction. 
lY.    Attachment. 

V.    Receivers. 
TI.    Deposit  in  Court. 

CHAPTER  I. 

ARREST   AND    BAIL. 

§  478.  No  person  to  be  arrested  except  as  prescribed  by 
this  Code. 

§  479.  Cases  in  which  defendant  may  be  arrested. 

§  480.  Order  for  arrest,  by  whom  made. 

§  481.  Affidavit  to  obtain  order,  what  to  contain. 

§  482.  Security  by  plaintiff  before  order  of  arrest. 

§  483.  Order,  when  made  and  its  form. 

§  484.  Affidavit  and  order  to  be  delivered  to  the  sheriff, 
and  copy  to  defendant. 

§  485.  Arrest,    how    made. 

§  486.  Defendant  to  be  discharged  on  bail  or  deposit. 

§  487.  Bail,    how    given. 

§  488.  Surrender  of  defendant. 

§  489.  Same. 

§  490.  Bail,  how  proceeded  against. 

§  491.  Bail,  ^ow  exonerated. 

§  492.  Delivery  of  undertaking  to  plaintiff,  and  its  accept- 
ance or  rejection  by  him. 

§  493.  Notice  of  justification.  New  undertaking,  if  other 
bail. 

§  494.  Qualification  of  bail. 

§  495.  Justification   of  bail. 

§  496.  Allowance  of  bail. 

§  497.  Deposit  of  money  with  sheriff. 

§  498.  Payment  of  money  into  court  by  sheriff. 

§  499.  Substituting  bail   for  deposit. 


§§  478,    479  ARREST   AND    BAIL.  190 

§  500.    Money   deposited,   how  applied   or   disposed   ot. 

§  501.     Sheriff,  when  liable  as  bail,  and  his  discharge  from 

liability. 
§  502.    Proceedings   on   judgment  against   sheriff. 
§  503.    Motion    to    vacate    order    of    arrest    or    reduce    bail. 

Affidavits  on  motion. 
§  504.    When  the  order  vacated  or  bail  reduced. 

§  478.  No  person  can  be  arrested  in  a  civil  ac- 
tion, except  as  prescribed  in  this  Code. 

Exemption  from  arrest— Constitutional  provi- 
sions.—Imprisonment  for  debt,  except  for  fraud, 
and  in  civil  actions  for  torts,  except  in  cases  of 
willful  injury  to  person  or  property,  abolished: 
Art.  1,  sec.  15.  Members  of  legislature  exempted 
from  arrest:  Art.  4,  sec.  11.  Electors  are  privileged 
on  election  day  while  in  attendance  at  an  election: 
Art.  2,  sec.  2.  No  person  to  be  imprisoned  for  a 
militia  fine  in  time  of  peace:  Art.  1,  sec.  15. 

Code  provisions.— Electors  are  privileged  from 
arrest  on  election  days,  being  the  same  in  effect  as 
the  constitutional  provision  above:  Pol.  Code,  sec. 
1069.  Persons  belonging  to  the  militaiT  forces, 
while  in  atendance  for  militaiy  duty,  are  also 
exempt  from  arrest  on  civil  process:  Pol.  Code, 
sec.  2021.  Females  privileged  from  arrest  in  civil 
actions,  at  least  in  justices'  courts:  Code  Civ. 
Proc,  sec.  861.  Witnesses  are  liliewise  privileged: 
Id.,  sec.  2067. 

§  479.  The  defendant  may  be  arrested,  as  here- 
inafter prescribed,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  money  or 
damages  on  a  cause  of  action  arising  upon 
contract,  express  or  implied,  when  the  defendant  is 
about  to  depart  from  the  State  with  intent  to  de- 
fraud his  creditors; 

2.  In  an  action  for  a  fine  or  penalty,  or  for 
money  or  property  embezzled,  or  fraudulently  mis- 
applied, or  converted  to  his  own  use,  by  a  public 


191  ARREST  AND  BAIL.  §§  480,  481 

officer,  or  an  officer  of  a  corporation,  or  an  attor- 
ney, factor,  broker,  agent,  or  clerk,  in  tlie  course 
of  bis  employment  as  such,  or  by  any  other  person 
in  a  fiduciary  capacity;  or  for  misconduct  or  neg- 
lect in  office,  or  in  a  professional  employment,  or 
for  a  willful  violation  of  duty; 

3.  In  an  action  to  recover  the  possession  of  per- 
sonal property  unjustly  detained,  when  the  prop- 
erty, or  any  part  thereof,  has  been  concealed,  re- 
moved, or  disposed  of,  to  prevent  its  being  found 
or  taken  by  the  sheriff; 

4.  When  the  defendant  has  been  guilty  of  a 
fraud  in  contracting  the  debt  or  incurring  the  ob- 
ligation for  which  the  action  is  brought;  or  in  con- 
cealing or  disposing  of  the  property  for  the  taking, 
detention,  or  conversion  of  Avhich  the  action  is 
brought; 

5.  When  the  defendant  has  removed  or  disposed 
of  his  property,  or  is  about  to  do  so,  with  intent 
to  defraud  his  creditors.  [Amendment,  approved 
March  24,  1874;  Amendments  1S73-4,  304.  In  effect 
July  1,  1874.] 

§  480.  An  order  for  the  arrest  of  the  defendant 
must  be  obtained  from  a  .iudge  of  the  court  in 
which  the  action  is  brought.  [Amendment,  ap- 
proved March  9,  1880;  Amendments  1880,  3.  In  ef- 
fect March  9,  1880.] 

§  481.  The  order  may  be  made  whenever  it  ap- 
pears to  the  judge,  by  the  affidavit  of  the  plaintiff, 
or  some  other  person,  that  a  sufficient  cause  of  ac- 
tion exists,  and  that  the  case  is  one  of  those  men- 
tioned in  section  four  hundred  and  seventy-nine. 
The  affidavit  must  be  either  positive  or  upon  infor- 
mation and  belief,  and  when  upon  informa- 
tion and  belief,  it  must  state  the  facts  upon 
wliich  the  information  and  belief  are  founded.  If 
an  order  of  arrest  be  made,  the  affidavit  must  be 


§§  482-484  ARREST   AND    BAIL.  192 

filed  with  the  clerk  of  the  court.  [Amendment,  ap- 
proved March  24,  1874;  Amendments  1873-4,  305. 
In  effect  July  1,  1874.] 

§  482.  Before  making  the  order,  the  judge  must 
require  a  written  undertaking  on  the  pait  of  the 
plaintiff,  with  sureties  in  an  amount  to  be  fixed 
by  the  judge,  which  must  be  at  least  five  hundred 
dollars,  to  the  effect  that  the  plaintiff  will  pay  all 
costs  which  may  be  adjudged  to  the  defendant, 
and  all  damages  which  he  may  sustain  by  reason 
of  the  arrest,  if  the  same  be  wrongful,  or  without 
sufficient  cause,  not  exceeding  the  sum  specified 
in  the  undertaking.  The  undertaking  must  be  filed 
with  the  clerk  of  the  court.  [Amendment,  approv- 
ed March  24,  1874;  Amendments  1873-4,  305.  In  ef- 
fect July  1,  1874.] 

Undertakings,  generally:  See  sec.  1057.  Effect 
of:  See  sec.  941.  Court  commissioner's  power  to 
take:  Sec.  259,  ante. 

On  dismissing  action,  undertalving,  when  to  be 
delivered  to  plaintiff:  Sec.  581. 

§  483.  The  order  may  be  made  at  the  time  of 
the  issuing  of  the  summons,  or  any  time  afterward 
before  judgment.  It  must  require  the  sheriff  of 
the  county  where  the  defendant  may  be  found, 
forthwith  to  arrest  him  and  hold  him  to  bail  in  a 
specified  sum,  and  to  return  the  order  at  a  time 
therein  mentioned,  to  the  clerk  of  the  court  in 
which  the  action  is  pending. 

§  484.  The  order  of  arrest,  with  a  copy  of  the 
affidavit  upon  which  it  is  made,  must  be  deliv- 
ered to  the  sheriff,  who,  upon  arresting  the  de- 
fendant, must  deliver  to  him  a  copy  of  the  affida- 
vit, and  also,  if  desired,  a  copy  of  the  order  of  ar- 
rest. 


193  ARREST  AND  BAIL.  §§  485-48& 

Sheriff's  duties.— To  excuse  omissiou  by  slieriff, 
direction  by  party  or  attorney  must  be  in  writing: 
Pol.  Code,  sec.  4185. 

§  485.  Tlae  sheriff'  must  execute  the  order  by  ar- 
resting the  defendant  and  lieeping  him  in  custody 
until  discharged  by  law. 

Production  of  process  upon  request:  Pol.  Code, 
sec.  4188. 

§  486.  The  defendant,  at  any  time  before  exe- 
cution, must  be  discharged  from  the  arrest,  either 
upon  giving  bail  or  upon  depositing  the  amount 
mentioned  in  the  order  of  arrest. 

§  487.  The  defendant  may  give  bail  by  causing 
a  written  undertalving  to  be  executed  by  two  or 
more  sufficient  sureties,  to  the  effect  that  they  are 
bound  in  the  amount  mentioned  in  the  order  of  ar- 
rest, that  the  defendant  will  at  all  times  render 
himself  amenable  to  the  process  of  the  court  dur- 
ing the  pendency  of  the  action,  and  to  such  as 
may  be  issued  to  enforce  the  judgment  therein,  or 
that  they  will  pay  to  the  plaintiff'  the  amount  of 
any  judgment  which  may  be  recovered  in  the  ac- 
tion. 

Bail— Qualifications  of:  Sees.  494,  1057. 

§  488.  At  any  time  before  judgment,  or  within 
ten  days  thereafter,  the  bail  may  surrender  the 
defendant  in  their  exoneration;  or  he  may  surren- 
der himself  to  the  sheriff  of  the  county  where  he 
was  arrested. 

§  489.  For  the  purpose  of  surrendering  the  de- 
fendant, the  bail,  at  any  time  or  place  before  they 
are  finally  charged,  may  themselves  arrest,  or,  by 
a  written  authority  indorsed  on  a  certified  copy  of 
the  undertaking,  may  empower  the  sheriff  to  do 
Code  Civ.  Proc— 17. 


§§  490-493  ARREST    AND    BAIL.  194 

SO.  Upon  the  arrest  of  defendant  hy  the  sherift', 
or  upon  his  delivery  to  the  sheriff  by  the  bail,  or 
upon  his  own  surrender,  the  bail  are  exonerated, 
if  such  arrest,  delivery,  or  surrender  take  place 
before  the  expiration  of  ten  days  after  judgment; 
but  if  such  arrest,  delivery,  or  surrender  be  not 
made  within  ten  days  after  judgment,  the  bail 
are  finally  charged  on  their  undertaking,  and 
bound  to  pay  the  amount  of  the  judgment  within 
ten  days  thereafter. 

§  490.  If  the  bail  neglect  or  refuse  to  pay  the 
judgment  within  ten  days  after  they  are  finally 
charged,  an  action  may  be  commenced  against 
such  bail  for  the  amount  of  the  original  judgment. 

§  491.  The  bail  are  exonerated  by  the  death  of 
the  defendant,  or  his  imprisonment  in  a  State  pris- 
on, or  by  his  legal  discharge  from  the  obligation  to 
render  himself  amenable  to  the  process. 

§  492.  Within  the  time  limited  for  that  purpose, 
the  sheriff  must  file  the  order  of  arrest  in  the  office 
of  the  clerk  of  the  court  in  which  the  action  is 
pending,  with  his  return  indorsed  thereon,  together 
witli  a  copy  of  the  undertaking  of  the  bail.  The 
original  undertaking  he  must  retain  in  his  posses- 
sion until  filed,  as  herein  provided.  The  plaintiff, 
within  ten  days  thereafter,  may  serve  upon  the 
sheriff  a  notice  that  he  does  not  accept  the  bail, 
or  he  is  deemed  to  have  accepted  them,  and  the 
sheriff  is  exonerated  from  liability.  If  no  notice 
be  served  within  ten  daj'S,  the  original  undertak- 
ing must  be  filed  with  the  clerk  of  the  court. 

§  493.  AYitliin  five  days  after  the  receipt  of  no- 
tice, the  sheriff  or  defendant  may  give  to  the  plain- 
tiff, or  his  attorney,  notice  of  the  justification  of 
the  same,  or  other  bail  (specifying  the  places  of 


195  ARREST   AND   BAIL.  §§  494,  495 

residence  aucl  occupations  of  the  latter),  before  a 
judge  of  the  court,  or  county  clerk,  at  a  specified 
time  and  place;  the  time  to  be  not  less  than  five  nor 
more  than  ten  days  thereafter,  except  by  consent 
of  parties.  In  case  other  bail  be  given,  there  must 
be  a  new  undertaking.  [Amendment,  approved 
March  9,  1880;  Amendments  1880,  3.  In  effect 
March  9,  1880.] 
Justification  of  bail:  See  see.  495,  infra. 

§  494.    The  qualifications  of  bail  are  as  follows: 

1.  Each  of  them  must  be  a  resident  and  house- 
holder, or  freeholder,  within  the  State. 

2.  Each  must  be  worth  the  amount  specified  in 
the  order  of  the  arrest,  or  the  amount  to  which  the 
order  is  reduced,  as  provided  in  this  chapter,  over 
and  above  all  his  debts  and  liabilities,  exclusive 
of  property  exempt  from  execution;  but  the  judge 
or  county  clerk,,  on  justification,  may  allow  more 
than  two  sureties  to  justify  severally,  in  amounts 
less  than  that  expressed  in  the  order,  if  the  whole 
justification  be  equivalent  to  that  of  two  sufiicient 
bail.  [Amendment,  approved  March  24,  1874; 
Amendments  1873-4,  306.    In  effect  July  1,  1874.] 

Qualifications— of  bail:  Sec.  1057,  post. 
Exemptions  from  execution:  See  sec.  690,  post. 

§  495.  For  the  purpose  of  justification,  each  of 
the  bail  must  attend  before  the  judge  or  county 
clerk,  at  the  time  and  place  mentioned  in  the  no- 
tice, and  may  be  examined  on  oath,  on  the  part  of 
the  plaintiff,  touching  his  sutficiency,  in  such  man- 
ner as  the  judge  or  clerk,  in  his  discretion,  may 
thinlc  proper.  The  examination  "must  be  reduced 
to  writing,  and  subscribed  by  the  bail,  if  required 
by  the  plaintiff. 

Justification:  Sec.  259,  subd.  3. 


§§  496-499  ARREST  AND  BAIL.  196 

§  496.  If  the  judge  or  clerk  find  the  bail  suffi- 
cient, he  must  annex  the  examination  to  the  un- 
dertalving,  indorse  his  alloAvance  thereon,  and 
cause  them  to  be  filed,  and  the  sheriff  is  thereupon 
exonerated  from  liability. 

Court  commissioners— power  as  to  bail,  sec.  259, 
subd.  3. 

§  497.  The  defendant  may,  at  the  time  of  his 
arrest,  instead  of  giving  bail,  deposit  with  the 
sheriff  the  amount  mentioned  in  the  order.  In  case 
the  amount  of  tlie  bail  be  reduced,  as  provided 
in  this  chapter,  the  defendant  may  deposit  such 
amount  instead  of  giving  bail.  In  either  case,  the 
sheriff  must  give  the  defendant  a  certificate  of  the 
deposit  made,  and  the  defendant  must  be  dis- 
charged from  custody. 

Deposit  in  court:  Sees.  572-574,  2104. 

» 

§  498.  The  sheriff"  must,  immediately  after  the 
deposit,  pay  the  same  into  court,  and  take  from  the 
clerk  receiving  the  same  two  certificates  of  such 
payment,  the  one  of  which  he  shall  deliver  to  the 
l)laintitl's  attorney,  and  the  other  to  the  defendant. 
For  any  default  in  making  such  payment,  the 
same  proceedings  may  be  had  on  the  official  bond 
of  the  sheriff,  to  collect  the  sum  deposited,  as  in 
other  cases  of  delinquency. 

Sheriff— penalty  for  nonpayment:  Pol.  Code,  sec. 
4181. 

§  499.  If  money  is  deposited,  as  provided  in  the 
two  last  sections,  bail  may  be  given,  and  may  jus- 
tify upon  notice,  a't  any  time  before  judgment;  and 
on  the  filing  of  the  undertaking  and  justification 
with  the  clerk,  the  money  deposited  must  be  re- 
funded to  the  defendant. 


197  ARREST    AND    BAIL.  §§  500-504 

§  500.  Where  money  has  beendeposited,  if  it  re- 
main on  deposit  at  the  time  of  the  recovery  of  a 
judgment  in  favor  of  the  phiintift',  the  clerk  must, 
under  the  direction  of  the  court,  apply  the  same 
in  satisfaction  thereof,  and  after  satisfying  the 
judgment,  refund  the  surplus,  if  any,  to  the  de- 
fendant. If  the  judgment  is  in  favor  of  the  de- 
fendant, the  clerk  must,  under  like  direction  of  the 
court,  refund  to  him  the  whole  sum  deposited  and 
remaining  unapplied. 

§  501.  If,  after  being  arrested,  the  defendant 
escape  or  is  rescued,  the  sheriff  is  liable  as  bail; 
but  he  may  discharge  himself  from  such  liability 
by  the  giving  bail  at  any  time  before  judgment. 

§  502.  If  a  judgment  is  recovered  against  the 
sheriff,  upon  his  liability  as  bail,  and  an  execution 
thereon  is  returned  unsatisfied  in  whole  or  in  part, 
the.  same  proceedings  may  be  had  on  his  official 
bond  for  the  recovery  of  the  whole  or  any  defi- 
ciency, as  in  other  cases  of  delinquency. 

§  503.  A  defendant  arrested  may,  at  any  time 
before  the  trial  of  the  action,  or  if  there  be  no  trial, 
before  the  entry  of  judgment,  apply  to  the 
judge  who  made  the  order,  or  the  court  in  which 
the  action  is  pending,  upon  reasonable  notice,  to 
vacate  the  order  of  arrest  or  to  reduce  the  amount 
of  bail.  If  the  application  be  made  upon  affidavits 
on  the  part  of  the  defendant,  but  not  otherwise, 
the  plaintiffs  may  oppose  the  same  by  afiidavits 
or  other  proofs,  in  addition  to  those  on  which  the 
order  of  arrest  was  made.  [Amendment,  approved 
March  24,  1874;  Amendments  1873-4,  30G.  In  ef- 
fect July  1,  1874.] 

§  504.  If,  upon  such  application,  it  apears  that 
there  was  not  sufiBcient  cause  for  the  arrest,  the 


§§  509,  510  CLAIM    AND    DELIVERY.  198 

order  must  be  vacated;  or  if  it  appears  that  the 
bail  was  fixed  too  liigh,  the  amount  must  be  re- 
duced. 


CHAPTER  II. 

CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

§  509.  Delivery  of  personal  property,  when  it  may  be 
claimed. 

§  510.     Affidavit  and  its  requisites. 

5  511.  Requisition  to  sheriff  to  take  and  deliver  the  prop- 
erty. 

§  512.  Security  on  the  part  of  the  plaintiff  and  proceediugs 
in  serving  the  order. 

§  513.  Exception  to  sureties  and  proceedings  thereon,  or 
on  failure  to  except. 

§  514.    Defendant,   when  entitled  to  redelivery. 

§  515.     Justification  of  defendant's  sureties. 

§  516.     Qualification   of   sureties. 

§  517.  Property,  how  taken,  when  concealed  in  building  or 
inclosure. 

§  518.    Property,   how  kept. 

§  519.     Claim  of  property  by  third  person. 

§  520.     Notice  and  affidavit,  when  and  where  to  be  filed. 

§  521.     Actions  on  undertaking. 

§  509.  The  plaintiff  in  an  action  to  recover  the 
possession  of  personal  property  may,  at  the  time  of 
issuing  the  summons,  or  at  any  time  before  answer 
claim  the  delivery  of  such  property  to  him,  as  pro- 
vided in  this  chapter. 

Judgment:  See  sees.  627,  GG7,  post. 

Verdict  in  actions  for  recovery  of  specific  per- 
sonalty: Sec.  027. 

§  510.  Where  a  delivery  is  claimed,  an  affidavit 
must  be  made  by  the  plaintiff,  or  by  some  one  in 
his   behalf,    showing: 

1.  That  the  plaintiff  is  the  owner  of  the  prop- 
erty claimed  (particularly  describing  it),  or  is  en- 
titled to  the  possession  thereof; 

2.  That  the  property  is  wrongfullj"  detained  by 
the  defendant; 


199  CLAIM   AND   DELIVERY.  §§  511,  512 

3.  The  alleged  cause  of  the  detention  thereof, 
according  to  his  best  knowledge,  information,  and 
belief; 

4.  That  it  has  not  been  taken  for  a  tax,  asses- 
ment,  or  fine,  pursuant  to  a  statute,  or  seized  un- 
der an  execution  or  an  attachment  against  the 
property  of  the  plaintiff,  or  if  so  seized,  that  it  is 
by  statute  exempt  from  such  seizure. 

5.  The  actual  value  of  the  property. 

Justices'  courts:  Sec.*510  et  seq.;  made  applica- 
ble to:  Sec.  870. 

Subdivision  5.  Value — incorrectly  stated  in  afh- 
davit:  Sec.  473. 

§  511.  The  plaintiff  or  his  attorney  may,  there- 
upon, by  an  indorsement  in  writing  upon  the  affi- 
davit, require  the  sheriff  of  the  county  where  the 
property  claimed  may  be,  to  take  the  same  from 
the  defendant. 

§  512.  Upon  a  receipt  of  the  afladavit  and  notice 
V^with  a  written  undertaking,  executed  by  two  or 
more  sufficient  sureties,  approved  by  the  sheriff", 
to  the  effect  that  they  are  bound  to  the  defendant 
in  double  the  value  of  the  property,  as  stated  in 
the  affidavit  for  the  prosecution  of  the  action, 
for  the  return  of  the  property  to  the  defendants,  if 
return  thereof  be  adjudged,  and  for  the  payment 
to  him  of  such  sum  as  may,  from  any  cause,  be 
recovered  against  the  plaintiff',  the  sheriff  must 
forthwith  take  the  property  described  in  the  affi- 
davit, if  it  be  in  the  possession  of  the  defendant  or 
his  agent,  and  retain  it  in  his  custody.  He  must, 
without  delay,  serve  on  the  defendant  a  copj^  of 
the  affidavit,  notice,  and  undertaking,  by  deliver- 
ing the  same  to  him  personally,  if  he  can  be  found, 
or  to  his  agent  from  whose  ])ossession  the  prop- 
erty is  taken,  or  if  neither  can  be  found,  by  leaving 


§§  513,  514  CLAIM    AND    DELIVERY.  200 

them  at  the  usual  place  of  abode  of  either,  with 
some  person  of  suitable  age  and  discretion,  or  if 
neither  have  any  known  place  of  abode,  by  putting 
them  in  the  nearest  post-office,  directed  to  the 
defendant. 

Sheriff's  duties:  Pol.  Code,  sees.  4185,  4188,  and 
generally,  sees.  4175-4193. 

Qualifications  of  sureties:  Sec.  1057. 

Return  of  property  to  defendant — verdict  for: 
Sec.  627;  judgment  for:  Sec.  667. 

Dismissal  of  action  on.— Clerli  is  to  hand  under- 
taking to  defendant:  Sec.  581;  subd.  1. 

Officer  executing  process  must  produce  same  on 
request:  Pol.  Code,  sec.  4188. 

Sheriff's  duties:  Sec.  262. 

Value  stated  in  affidavit  is  not  conclusive  evi- 
dence against  sheriff  or  sureties:  Sec.  473. 

§  513.  The  defendant  may,  within  two  days 
after  the  service  of  a  copy  of  the  affidavit  and  un- 
dertaking, give  notice  to  the  sheriff  that  he  excepts 
to  the  sufficiency  of  the  sureties.  If  he  fails  to  do 
so,  he  is  deemed  to  have  waived  all  objection  to 
them.  When  the  defendant  excepts,  the  sureties 
must  justify  on  notice  in  like  manner  as  upon  bail 
on  arrest;  and  the  sheriff  is  responsible  for  the 
sufficiency  of  the  sureties  until  the  objection  to 
them  is  either  waived  or  until  they  justify.  If  the 
defendant  except  to  the  sureties,  he  cannot  re- 
claim the  property  as  provided  in  the  next  section. 

Justification  of  sureties:  See  sec.  495,  ante. 

§  514.  At  any  time  before  the  delivery  of  the 
property  to  the  plaintiff,  the  defendant  may,  if  he 
do  not  except  to  the  sureties  of  the  plaintiff,  re- 
quire the  return  thereof,  upon  giving  to  the  sheriff 
a  written  undertaking,  executed  by  two  or  more 
sufficient  sureties,  to  the  effect  that  they  are  bound 


201  CLAIM  AND   DELIVERY.  §§  515-517 

ill  double  the  value  of  the  property,  as  stated  in 
the  affidavit  of  the  plaintiff,  for  the  delivery  there- 
of to  the  plaintiff,  if  such  delivery  be  adjudged, 
and  for  the  paj'ment  to  him  of  such  sum  as  may, 
for  any  cause,  be  recovered  against  the  defend- 
ant. If  a  return  of  the  property  be  not  so  required 
within  five  days  after  the  taking  and  service  of 
notice  to  the  defendant,  it  must  be  delivered  to 
the  plaintiff,  except  as  provided  in  section  519. 

As  to  undertakings  generally,  see  sec.  941;  qual- 
ifications of  sureties,  sec,  1057. 

§  515,  The  defendant's  sureties,  upon  notice  to 
the  plaintiff  of  not  less  than  two  or  more  than  five 
days,  must  justify  before  a  judge  or  county  clerk, 
in  the  same  manner  as  upon  bail  or  arrest:  and 
upon  such  justification  the  sheriff  must  deliver  the 
property  to  the  defendant.  The  sheriff  is  responsi- 
ble for  the  defendant's  sureties  until  they  justify, 
or  until  the  justification  is  completed  or  waived, 
and  may  retain  the  property  until  that  time;  if 
they,  or  others  in  their  place,  fail  to  justify  at  the 
time  and  place  appointed,  he  must  deliver  the 
property  to  the  plaintiff'. 

§  516.  The  qualification  of  sureties  must  be 
such  as  are  prescribed  by  this  Code,  in  respect  to 
bail  upon  an  order  of  arrest. 

Sureties — qualifications  of:  Sec.  1057,  and  ante, 
sees,  494,  495. 

§  517.  If  the  property,  or  any  part  thereof  be 
concealed  in  a  building  or  inclosure,  the  sheriff 
must  publicly  demand  its  delivery;  if  it  be  not 
delivered,  he  must  cause  the  building  or  inclosure 
to  be  broken  open,  and  take  the  property  into  his 
possession;  and,  if  necessary,  he  may  call  to  his 
aid  the  poAver  of  his  county. 

Duties  of  sheriff:  See  Pol,  Code,  sec.  4175  et  seq. 


§§  518-521  CLAIM    AND    DELTVERY.  202 

§  518.  Wlien  the  sheriff  has  taken  property,  as 
in  this  chapter  provided,  he  must  Iveep  it  in  a  se- 
cure place,  and  deliver  it  to  the  party  entitled 
thereto,  upon  receiving  his  fees  for  tali;ing-  and  his 
necessary  expenses  for  keping  the  same. 

§  519.  If  the  property  talven  be  claimed  by  any 
other  person  than  the  defendant  or  his  agent,  and 
such  person  make  affidavit  of  his  title  thereto,  or 
right  to  the  possession  thereof,  stating  the  grounds 
of  such  title  or  right,  and  serve  the  same  upon  the 
sheriff,  the  sheriff  is  not  bound  to  keep  the  prop- 
erty or  deliver  it  to  the  plaintiff,  unless  the  plain- 
tiff, on  demand  of  him  or  his  agent,  indemnify  the 
sheriff  against  such  claim,  by  an  undertaking, 
by  tv^'o  sufficient  sureties;  and  no  claim  to  such 
property  by  any  other  person  than  the  defendant 
or  his  agent  is  valid  against  the  sheriff  unless  so 
made. 

§  520.  The  sheriff  must  file  the  notice,  under- 
taking, and  affidavit,  with  his  proceedings  thereon, 
with  the  clerk  of  the  court  in  which  the  action  is 
pending,  within  twenty  days  after  taking  the  prop- 
erty mentioned  therein. 

§  521.  [Repealed.]  Act  approved  March  24, 
1874;  Amendments  1873-4,  306.  In  effect  July  1, 
1874.] 


203  INJUNCTION.  §§  525,  526 

CHAPTER  HI. 

INJUNCTION. 

I  525.    Injunction,  what  it  is  and  who  may  grant  it. 

§  526.    When  it  may  be  granted. 

§  527.  At  what  time  it  may  be  granted,  and  what  is  re- 
quired to  obtain   it. 

§  528.     Injunction    after   answer. 

§  529.    Security  upon  injunction. 

§  530.  Order  to  show  cause  why  injunction  should  not  be 
granted. 

§  531:  Injunction  to  suspend  business  of  a  corporation, 
how  and  by  whom  granted. 

§  532.    Motion  to  vacate  or  modify  injunction. 

§  533.    When  to  be  vacated  or  modified. 

§  525.  An  injimction  is  a  writ  or  order  requiring 
^  a  person  to  refrain  from  a  particular  act.  It  may 
be  granted  by  the  court  in  wliicli  tlie  action  is 
brought,  or  by  a  jud^e  thereof;  and  when  made  by 
a  iudge,  it  may  be  enforced  ns  an  order  of  the 
court.  [Amendment,  approved  March  9,  1880; 
Amendments  1880,  3.    In  effect  March  %  1880.] 

Injunction.— Disobedience  to  is  contempt:  Sees. 
1209,  1210;  limitations,  how  affected  by:  Sec.  356; 
proceedings  to  obtain:  Sees.  257,  to  531;  vacating 
or  modifying:  Sees.  532,  533. 

A  seal  is  necessary  to  a  writ:  Sec.  152,  subd.  1. 

Injunction,  kinds  of— provisional  or  preliminary, 
also  called  temporary:  Sec.  525  et  seq.;  sec.  526, 
subds.  2  and  3,  permanent  or  final  (including  lim- 
ited and  perpetual),  sec.  526,  subd.  ]. 

Courts  and  judges— power  to  grant  injunction, 
on  any  day:  Sees.  76,  134;  at  chambers:  sec.  166; 
court  commissioners  not  empowered  to  issue:  Sec. 
259,  subd.  1. 


^ 


§  526.    An  injunction  may  be  granted  in  the  fol- 
owing  cases: 


§  527  INJUNCTION.  204 

1.  When  it  appears  by  the  complaint  that  the 
plaintiff  is  entitled  to  the  relief  demanded,  and 
such  relief,  or  any  part  thereof,  consists  in  re- 
straining the  commission  or  continuance  of  the 
act  complained  of,  either  for  a  limited  period  or 
perpetually. 

2.  AVhen  it  appears  by  the  complaint  or  affidavit 
that  the  commission  or  continuance  of  some  act 
during  the  litigation  would  produce  waste,  great  or 
irreparable  injury  to  the  plaintiff. 

3.  When  it  appears  during  the  litigation  that  the 
defendant  is  doing,  or  threatens,  or  Is  about  to  do, 
or  is  procuring  or  suft'ering  to  be  done,  some  act 
in  violation  of  the  plaintift"'s  rights,  respecting  the 
subject  of  the  action,  and  tending  to  render  the 
judgment  ineffectual. 

Where  the  obligation  arises  from  a  trust:  Civ. 
Code,  sec.  3422. 

To  prevent  a  legislative  act  by  a  municipal  cor- 
poration: Civ.  Code,  sec.  3423. 

p]njoining  nuisance:  Sec.  731,  post. 

Trademarlv,  use  of  enjoined:  Pol.  Code,  sees. 
3196-3199. 

Individual  cannot  restrain  public  nuisance:  See 
post,  sees.  731,  et  seq. 

Mortgage.— Injunction  to  restrain  party  in  pos- 
session from  waste  during  foreclosure  suit:  Sec. 
745. 

Disobeying  order  or  process,  contempt,  etc.: 
Sees.  1209,  1210. 

§  527.  The  injunction  may  be  granted  at  the 
time  of  issuing  the  summons  upon  the  complaint, 
and  at  any  time  afterward,  before  judgment,  upon 
affidavits.  The  complaint  in  the  one  case,  and  the 
affidavits  in  the  other,  must  show  satisfactorily 
that  sufficient  grounds  exist  therefor.  No  injunc- 
tion can  be  granted  on  the  complaint  unless  it  is 


205  INJUNCTION.  §§  528.  529 

verilied,  AMieu  granted  on  the  conipaint,  a  copy  of 
the  comphiint  and  verificatiou  attached  must  be 
served  with  the  iujunctiou;  ^Yhen  granted  upon 
affidavit,  a  copy  of  the  affidavit  must  be  served 
with  the  injunction.  No  injunction  granted  prior 
to  the  actual  trial  of  the  cause  wherein  it  is  grant- 
ed shall  continue  in  force  for  a  longer  period 
than  twelve  months  from  the  time  such  injunction 
was  granted,  except  by  consent  of  the  parties,  or 
unless  the  cause  be  set  for  trial  upon  its  merits. 
[Amendment,  approved  March  12,  1895;  Stats. 
1895,  51.    In  effect  March  12,  1895.] 

Complaint— verification  of:  Sec.  446. 

Service  by  sheriff:  See  Sheriff's  Duties,  Pol. 
Code,  sees.  4175-4191. 

§  528.  An  injunction  cannot  be  allowed  after 
the  defendant  has  answered,  unless  upon  notice, 
or  upon  an  order  to  show  cause;  but  in  such  case 
the  defendant  may  be  restrained  until  the  decision 
of  the  court  or  judge  granting  or  refusing  the  in- 
junction. 

§  529.  On  granting  an  injunction,  the  court  or 
judge  must  require,  except  when  the  people  of  the 
State,  a  county,  or  municipal  corporation,  or  a 
married  woman  in  a  suit  against  her  husband,  is 
a  party  plaintiff,  a  written  undertaking  on  the  part 
of  the  plaintiff,  with  sufficient  sureties,  to  the  ef- 
fect that  the  plaintiff  will  pay  to  the  party  enjoin- 
ed such  damages,  not  exceeding  an  amount  to  be 
specified,  as  such  party  may  sustain  by  reason  of 
the  injunction,  if  the  court  finally  decide  that  the 
plaintiff  was  not  entitled  thereto.  Within  five 
days  after  the  service  of  the  injunction,  the  de- 
fendant may  except  to  the  sufficiency  of  the  sure- 
ties. If  he  fails  to  do  so,  he  is  deemed  to  have 
^^'aived  all  objections  to  them.  When  excepted  to. 
Code  Civ.  Proc— 18. 


I  530 


INJUNCTION.  206 


the  plaintiff  sureties,  upon  notice  to  tlie  defendant 
of  not  less  than  tAYO  nor  more  than  five  days, 
must  justify  before  a  judge  or  county  clerli  in  the 
same  manner  as  upon  bail  on  arrest,  and  upon  fail- 
ure to  justify,  or  if  others  in  their  place  fail  to 
justify  at  the  time  and  place  appointed,  the  order 
granting  an  injunction  shall  be  dissolved.  [Amend- 
ment, approved  April  15,  1880;  Amendments  1880, 
62.    In  effect  April  15,  1880.] 

Undertakings  generally:  Sec.  941;  returned  on 
dismissal:  Sec.  581,  subd.  1.  Sureties,  qualifica- 
tions of:  Sec.  1057;  justification  of:  Sec.  495,  also 
sec.  259,  subd.  3. 

Court  commissioners,  power  to  take  bonds  and 
undertakings,  examine  sureties,  etc.:  Sec.  259, 
subd.  3, 

§  530.  If  the  court  or  judge  deem  it  proper  that 
the  defendant,  or  any  of  several  defendants, 
should  be  heard  before  granting  the  injunction,  an 
order  may  be  made  requiring  cause  to  be  shown, 
at  a  specified  time  and  place,  why  the  injunction 
should  not  be  granted;  and  the  defendant  may,  in 
the  meantime,  be  restrained.  In  all  actions  pend- 
ing or  Avhich  may  be  hereafter  brought,  when  an 
injunction  or  restraining  order  has  been  or  may  be 
granted,  or  applied  for,  to  prevent  the  diversion 
]iending  the  litigation,  of  water  used  or  to  be  used 
for  irrigation  or  domestic  purposes  only,  if  it  be 
made  to  appear  to  the  court  that  the  plaintiff  is 
entitled  to  the  injunction,  but  that  the  issuance 
tliereof  pending  the  litigation  will  entail  great 
damage  upon  the  defendant,  and  that  plaintiff  can 
be  fully  compensated  for  such  damages  as  he  may 
suffer,  the  court  may  refuse  the  injunction  upon 
the  defendant  giving  a  bond,  such  as  is  provided 
for  in  section  532;  and  upon  the  trial  the  same 
proceedings  shall  be  had,  and  with  the  same  effect, 


207  INJUNCTION.  §§  531,  532 

as  in  said  section  provided.  [Amendment,  ap- 
proved Marcli  24,  1887;  Stats.  1887,  240.  In  effect 
Marcli  24,  1887.] 

§  531.  An  injunction  to  suspend  the  general 
and  ordinary  business  of  a  corporation  cannot  be 
granted  except  by  the  court  or  a  judge  thereof; 
nor  can  it  be  granted  without  due  notice  of  the  ap- 
plication therefor  to  the  proper  officers  or  manag- 
ing agent  of  the  corporation,  except  when  the  peo- 
ple of  this  State  are  a  party  to  the  proceeding. 

§  532.  If  an  injunction  be  granted  without  no- 
tice, the  defendant  at  any  time  before  the  trial, 
may  apply,  upon  reasonable  notice  to  the  judge 
who  granted  the  injunction,  or  to  the  court  in 
which  the  action  is  brought,  to  dissolve  or  modify 
the  same.  The  application  may  be  made  upon  the 
complaint  and  the  affidavit  on  whicli  the  injunc- 
tion was  granted,  or  upon  affidavit  on  the  part  of 
the  defendant,  with  or  without  the  answer.  If  the 
application  be  made  upon  affidavits  on  the  part  of 
the  defendant,  but  not  otherwise,  the  plaintiff  may 
oppose  the  same  by  affidavits  or  other  evidence  in 
addition  to  those  on  which  the  injunction  was 
granted.  In  all  actions  pending,  or  which  may 
be  hereafter  brought,  when  an  injunction  or  re- 
straining order  has  "been  or  may  be  granted  or  ap- 
plied for,  to  prevent  the  diversion,  pending  the  lit- 
igation, of  water  used  or  to  be  used  for  irriga- 
tion or  domestic  purposes  only,  if  it  be  made  to  ap- 
pear to  the  court  that  great  damage  will  be  suf- 
fered by  the  defendant  in  case  the  injunction  is 
continued,  and  that  the  plainti^'  can  be  fully  com- 
pensated for  any  damages  he  may  suffer  by  reason 
of  the  continuance  of  the  acts  of  the  defendant 
during  the  pendency  of  the  litigation,  the  court,  in 
its  discretion,  may  dissolve  or  modify  the  injunc- 


§  533  INJUNCTION.  208 

tion,  upon  the  defendant  giving  a  bond,  with  sure- 
ties to  be  approved  by  the  judge,  and  in  such 
amount  as  may  be  fixed  by  the  court  or  judge,  con- 
ditioned that  the  defendant  will  pay  all  damages 
which  the  plaintiff  may  suffer  by  reason  of  the 
continuance  during  the  litigation  of  the  acts  com- 
plained of.  Upon  the  trial  the  amount  of  such 
damages  shall  be  ascertained,  and  in  case  judg- 
ment is  rendered  for  the  plaintiff,  the  amount  fixed 
as  such  damages  shall  be  included  in  the  judg- 
ment, together  with  reasonable  attorneys'  fees. 
Upon  a  suit  brought  on  the  bond  the  amount  of 
damages  as  fixed  in  said  judgment  shall  be  con- 
clusive upon  the  sureties.  [Amendment  approved 
March  24;  Stats.  1887,  p.  240.  In  effect  March  24, 
1887.] 
Vacating  orders  made  out  of  court:  Sec.  937. 

§  533.  If  upon  such  application  it  satisfactor- 
ily appear  that  there  is  not  sufficient  ground  for 
the  injunction,  it  must  be  dissolved;  or  if  it  sat- 
isfactorily appear  that  the  extent  of  the  injunction 
is  loo  great,  it  must  be  modified. 


i 


209  ATTACHMENT.  §  537 

CUArXER  IV. 

ATTACHMENT. 

§  537.    Attachment,  when  and  in  what  cases  may  issue. 

§  538.     Affidavit  for  attachment,  what  to  contain. 

§  539.    Undertaking   on   attachment. 

§  540.    Writ,   to  whom   directed   and  what  to   state. 

§  541.  Shares  of  stock  and  debts  due  defendant,  how  at- 
tached and   disposed  of. 

§  542.    How  real  and  personal   property  shall   be   attached. 

§  543.  Attorney  to  give  written  instructions  to  sheriff  what 
to    attach. 

§  544.    Garnishment,    when   garnishee  liable   to   plaintiff. 

§  545.  Citation  to  garnishee  to  appear  before  a  court  or 
judge. 

§  543.  Inventory,  how  made.  Party  refusing  to  give  mem- 
orandum may  be  compelled  to  pay  costs. 

§  547.  Perishable  property,  how  sold.  Accounts  without  suit 
to   be    collected. 

§  548.  Property  attached  may  be  sold  as  under  execution,  if 
the  interest  of  the  parties  require. 

§  549.    When  property  claimed  by  a  third  party,  how  tried. 

§  550.     If  plaintiff  bbtains  judgment,  how  satisfied. 

§  551.     When  there  remains  a  balance  due,  how  collected. 

§  552.     W^hen  suits  may  be  commenced  on  the  undertaking. 

§  553.  If  defendant  recover  judgment,  what  the  sheriff  is 
to   deliver. 

§  554.  Proceedings  to  release  attachment,  before  whom  tak- 
en. 

§  555.  Attachment,  in  what  cases  it  may  be  released  and 
upon  what  terms. 

§  556.  When  a  motion  to  discharge  attachment  may  be 
made,   and  upon  what  grounds. 

§  557.  When  motion  made  on  affidavit,  it  may  be  opposed 
by  affidavit. 

§  558.    When  writ  must  be  discharged. 

§  559.    When   writ   to   be    returned. 

§  537.  The  plaintiff,  at  the  time  of  issuing  the 
summons,  or  at  any  time  afterward,  may  have  the 
property  of  the  defendant  attached,  as  security 
for  the  satisfaction  of  any  judgment  that  may  be 
recovered,  unless  the  defendant  give  security  to 
pay  such  judgment,  as  in  this  chapter  provided, 
in  the  following  cases: 


§  538  ATTACHMENT.  210 

1.  lu  an  action  upon  a  contract,  express  or  im- 
plied, for  the  direct  payment  of  mone3%  where  the 
contract  is  made  or  is  payable  in  this  State,  and  is 
not  secured  by  any  mortgage  or  lien  upon  real 
or  personal  property,  or  any  pledge  of  personal 
property,  or,  if  originally  so  secured,  such  security 
has,  without  any  act  of  the  plaintiff,  or  the  person 
to  whom  the  security  was  given,  become  valueless: 

2.  In  an  action  upon  a  contract,  express  or  im- 
plied, against  a  defendant  not  residing  in  this 
State.     [In  effect  July  1st,  1874.] 

Attachment,  dissolution  generally:  Sees.  556-558; 
sherifC's  duties,  sees.  542,  550,  and  return,  sees. 
546,  559;  affidavit,  see  sec.  557;  bonds,  sees.  539, 
555;  garnishment,  sees.  542,  543-545. 

I'reventing  levy  by  counter-bond:  See  sec.  540. 

Pwesidence:  See  Polit.  Code,  sec.  52. 

§  538.    The  clerk  of  the  court  must  issue  the 
j       writ  of  attachment,   upon  receiving  an  affidavit 
\       by  or  on  behalf  of  plaintiff,  showing: 
w     1.    That  the  defendant  is  indebted  to  the  plain- 
tiff (specifying  the  amount  of  such  indebtedness 
over  and  above  all  legal  setoffs  or  counter-claims) 
upon  a  contract,  express  or  implied,  for  the  direct 
payment  of  money,  and  that  such  contract  was 
made  or  is  payable  in  this  State,  and  that  the  pay- 
ment of  the  same  has  not  been  secured  by  any 
mortgage  or  lien  upon  real  or  personal  property, 
or  any  pledge  of  personal  property,  or,  if  originally 
so  secured,  that  such  security  has,  without  any  act 
of  the  plaintiff,  or  the  person  to  whom  the  security 
was  given,  become  valueless;  or, 

2.  That  the  defendant  is  indebted  to  the  plain- 
tiff (specifying  the  amount  of  such  indebtedness 
over  and  above  all  legal  setoffs  or  counter-claims) 
and  that  the  defendant  is  a  nonresident  of  the 
State;  and 


211  ATTACHMENT.  g  536 

3.  That  the  attachment  is  not  sought,  and  the 
action  is  not  prosecuted,  to  hinder,  delaj',  or  de- 
fraud any  creditor  of  the  defendant.  [Amendment 
approved  March  24,  1874;  Amendments  1873-4,  p. 
307.    In  effect  July  1,  1874.] 

Duty  of  clerk:  See  Polit.  Code,  sec.  1032. 

§  539.  Before  issuing  the  writ  the  clerk  must 
require  a  written  undertaking  on  the  part  of  the 
plaintiff,  in  a  sum  not  less  than  two  hundred 
dollars,  and  not  exceeding  the  amount  claimed  by 
the  plaintiff,  with  sufficient  sureties,  to  the  effect 
that  if  the  defendant  recover  .iudgment,  the 
plaintiff  will  pay  all  costs  that  may  be  awarded 
to  the  defendant  and  all  damages  which  he  may 
sustain  by  reason  of  the  attachment,  not  exceed- 
ing the  sum  specified  in  the  undertaking.  With- 
in five  days  after  service  of  the  summons  in  the 
action,  the  defendant  may  except  to  the  suffi- 
ciency of  the  sureties.  If  he  fails  to  do  so,  he  is 
deemed  to  have  Avaived  all  objections  to  them. 
When  excepted  to,  the  plaintiff's  sureties,  upon 
notice  to  the  defendant  of  not  less  than  two  nor 
more  than  five  days,  must  justify  before  a  judge 
or  county  clerk  in  the  same  manner  as  upon  bail 
on  arrest,  and  upon  failure  to  justify,  or  if  others 
in  their  place  fail  to  justify,  at  the  time  and  place 
appointed,  the  clerk  or  judge  shall  issue  an  order 
vacating  the  writ  of  attachment.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  p. 
406.    In  effect  March  30,  1874.] 

Undertaking,  generally:  Sees.  259,  subd.  3,  581; 
subd.  1. 

Sureties,  justification  of:  Sec.  495;  qualifications 
of:  Sec.  1057. 

Dismissal  of  action  on. — Clerk  is  to  hand  uudei- 
taking  to  defendant:  Sec.  581,  subd.  1. 


§§  540-542  ATTACHMENT.  212 

§  540.  The  writ  must  be  directed  to  the  sheriff 
or  any  county  in  which  property  of  such  defendant 
may  be,  and  must  require  him  to  attach  and  safely 
keep  all  the  property  of  such  defendant  within  his 
county  not  exempt  from  execution,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  the  plain- 
tiff's demand,  the  amount  of  which  must  be  stated 
in  conformity  with  the  complaint,  unless  the  de- 
fendant give  him  security  by  the  undertaking  of 
at  least  two  sufficient  sureties,  in  an  amount  suf- 
ficient to  satisfy  such  demand,  besides  costs,  or  in 
an  amount  equal  to  the  value  of  the  property 
which  has  been  or  is  about  to  be  attached;  in 
which  case,  to  take  such  undertaking.  Several 
writs  may  be  issued  at  the  same  time  to  the  sher- 
iffs of  different  counties. 

Writ,  generally:  Sec.  51;  seal  necessary  to  writ, 
sec.  153,  subd.  1. 

Sheriff,  duties,  of,  excused  only  by  written  di- 
rections: Polit.  Code,  sec.  4185;  when  must  show 
process,  Polit.  Code,  sec.  4188. 

Exemptions  from  execution:  Sec.  690. 

Bond  for  release  after  appearance:  Sec.  555. 

§  541.  The  rights  or  shares  which  the  defend- 
ant may  have  in  the  stock  of  any  corporation  or 
company,  together,  with  the  interest  and  protit 
thereon,  and  all  debts  due  such  defendant,  and  all 
other  property  in  this  State  of  such  defendant  not 
exempt  from  execution,  may  be  attached,  and  if 
judgment  be  recovered,  be  sold  to  satisfy  the  judg- 
ment and  execution. 

Stocks  or  shares,  how  attached:  Sec.  542,  subd.  4. 

Debts  and  credits,  etc.,  how  attached:  Sec.  542, 
subd.  5. 

Garnishment,  generally:  Sees.  543-545. 


\j 


§  542.    The  sheriff  to  whom  the  writ  is  directed 
and  delivered  must  execute  the  same  without  de- 


213  ATTACHMENT.  §  542 

lay,  and  if  the  undertaking  mentioned  in  section 
five  liundred  and  forty  be  not  given,  as  follows: 

1.  Ileal  property,  standing  upon  the  records  of 
the  county  in  the  name  of  the  defendant,  must  be 
attached,  by  filing  with  the  recorder  of  the  coun- 
ty, a  copy  of  the  writ,  together  with  a  description 
of  the  property  attached,  and  a  notice  that  it  is  at- 
tached; and  by  leaving  a  similar  copy  of  the  writ, 
description,  and  notice  with  an  occupant  of  the 
property,  if  there  is  one;  if  not,  then  by  posting 
the  same  in  a  conspicuous  place  on  the  property 
attached. 

2.  Real  property,  or  an  interest  therein,  belong- 
ing to  the  defendant,  and  held  by  any  other  per- 
son, or  standing  on  the  records  of  the  county,  in 
the  name  of  any  other  person,  must  be  attached, 
by  filing  with  the  recorder  of  the  county  a  copy 
of  the  writ,  together  with  a  description  of  the 
property,  and  a  notice  that  such  real  property,  and 
any  interest  of  the  defendant  therein,  held  by  or 
standing  in  the  name  of  such  other  person  (nam- 
ing him),  are  attached;  and  by  leaving  with  the 
occupant  if  any,  and  with  such  other  person,  or 
his  agent,  if  known  and  within  the  county,  or  at 
tbo  residence  of  eitlier.  if  within  the  county,  a 
copy  of  the  writ,  with  a  similar  description  and  no- 
tice. If  there  is  no  occupant  of  the  property,  a 
copy  of  the  writ,  togetlier  with  such  description 
and  notice,  must  be  posted  in  a  conspicuous  place 
upon  the  property.  The  recorder  must  index 
such  attachment  when  filed,  in  the  names,  both  of 
the  defendant  and  of  the  person  by  whom  the 
property  is  held  or  in  whose  name  it  stands  on  the 
records : 

3.  Personal  property,  capable  of  manual  de- 
livery, must  be  attaclied  by  taking  it  into  custody; 

4.  Stocks  or  shares,  or  interest  in  stocks  or 
shares,  of  any  corporation  or  company,  must  be 


§§  543.  544  ATTACHMENT.  214 

attached  by  leaving  with  the  president,  or  other 
head  of  the  same,  or  the  secretary,  cashier,  or 
other  managing  agent  thereof,  a  copy  of  the  writ, 
and  a  notice  stating  that  the  stock  or  interest  of 
the  defendant  is  attached,  in  pursuance  of  such 
writ; 

5.  Debts  and  credits,  and  other  personal  prop- 
erty, not  capable  of  manual  delivery,  must  be  at- 
tached by  leaving  with  the  person  owing  such 
debts,  or  having  in  his  possession,  or  under  his 
control,  such  credits  and  other  personal  property, 
or  with  his  agent,  a  copy  of  the  writ,  and  a  no- 
tice that  the  debts  owing  by  him  to  the  defend- 
ant or  the  credits  and  other  personal  property  in 
his  possession,  or  under  his  control,  belonging  to 
the  defendant,  are  attached  in  pursuance  of  such 
writ. 

Attachment  lien,  officer's:  Civ.  Code,  sec.  3057; 
leviable  interest,  in  mortgaged  property.  Civ.  Code, 
sees.  2968-2970;  fraudulent  transfers,  Civ.  Code, 
sees.  1227,  3431,  3432,  3439-42. 

§  543.  Upon  receiving  information  in  writing 
from  the  plaintiff  or  his  attorney,  that  any  per- 
son has  in  his  possession  or  under  his  control  any' 
credits  or  other  personal  property  belonging  to  the 
defendant,  or  is  owing  any  debt  to  the  defendant, 
the  sheriff  must  serve  upon  such  person  a  copy  of 
the  writ  and  a  notice  that  such  credits,  or  other 
property,  or  debts,  as  the  case  may  be,  are  at- 
tached, in  pursuance  of  such  writ. 

§  544.  All  persons  having  in  their  possession  or 
under  their  control  any  credits  or  other  personal 
property  belonging  to  the  defendant,  or  owing 
any  debts  to  the  defendant,  at  the  time  of  ser- 
vice upon  them  of  a  copy  of  the  writ  and  notice, 
US  provided  in  the  last  two  sections,  shall  be,  un- 


215  ATTACHMENT.  §§  545,  546 

less  such  property  be  delivered  up  or  transferred, 
or  such  debts  be  paid  to  the  sheriff,  liable  to  the 
plaintiff  for  tlie  amount  of  such  credits,  property, 
or  debts,  until  the  attachment  be  discharged,  or 
any  judgment  recovered  by  him  be  satisfied. 
Similar  provision  as  to  execution:  Sec.  71G. 

§  545.  Any  person  owing-  debts  to  the  defend- 
ant, or  having  in  his  possession  or  under  his  con- 
trol any  credits  or  other  personal  property  belong- 
ing to  the  defendant,  may  be  required  to  attend 
before  the  court  or  judge,  or  a  referee  appointed 
by  the  court  or  judge,  and  be  examined  on  oath  re- 
specting the  same.  The  defendant  m^iy  also  be  re- 
quired to  attend,  for  the  purpose  of  giving  infor- 
mation respecting  his  property,  and  may  be  ex- 
amined on  oath.  The  court  or  judge  may,  after 
such  examination,  order  personal  property,  capa- 
ble of  manual  delivery,  to  be  delivered  to  the  sher- 
iff on  such  terms  as  may  be  just,  having  refer- 
<ence  to  any  liens  thereon  or  claims  against  the 
same,  and  a  memorandum  to  be  given  of  all  other 
personal  property,  containing  the  amount  and  de- 
scription thereof. 

Compare,  proceedings  supplementary  to  execu- 
tion: Sees.  714-721. 

§  546.  The  sheriff  must  make  a  full  inventory 
of  the  property  attached,  and  return  the  same  witn 
the  writ.  To  enable  him  to  make  such  return  as  to 
debts  and  credit,  attached,  he  must  request,  at 
the  time  of  service,  the  party  owing  the  debt  or 
having  the  credit  to  give  him  a  memorandum, 
stating  the  amount  and  description  of  each;  and 
if  such  memorandum  be  refused,  he  must  return 
the  fact  of  refusal  with  tlie  writ.  The  party  re- 
fusing to  give  the  memorandum  may  be  required 
to  pay  the  costs  of  any  proceedings  taken  for  the 


§§  547-549  ATTACHMENT.  216 

purpose  of  obtaining  information  respecting  the 
amounts  and  description  of  such  debt  or  credit. 
Return  of  writ,  generally:  See,  infra,  sec.  559. 

S  547.  If  any  of  the  property  attached  be  per- 
ishable, the  slieriff  must  sell  the  same  in  the  man- 
ner in  which  such  property  is  sold  on  execution. 
The  proceeds  and  other  property  attached  by  him 
must  be  retained  by  him  to  answer  any  judgment 
that  may  be  recovered  in  the  action,  unless  sooner 
subjected  to  execution  upon  another  judgment, 
recovered  previous  to  the  issuing  of  the  attach- 
ment. Debts  and  credits  attached  may  be  col- 
lected by  hiiu,  if  the  same  can  be  done  without 
suit.  The  sheriff's  receipt  is  a  sufficient  discharge 
for  the  amount  paid. 

§  548.  Whenever  property  has  been  fallen  by 
an  officer  under  a  writ  of  attachment,  and  it  is 
made  to  appear  satisfactorily  to  the  court  or  a 
judge  thereof,  that  the  interest  of  the  parties  to 
the  action  will  be  subserved  by  a  sale  thereof, 
the  court  or  judge  may  order  such  property  to  be 
sold  in  the  same  manner  as  property  is  sold  under 
an  execution,  and  the  proceeds  to  be  deposited  in 
the  court,  to  abide  the  judgment  in  the  action. 
Such  order  can  be  made  only  upon  notice  to  the 
adverse  party  or  his  attorney,  in  case  such  party 
has  been  personally  served  with  a  summons  in 
the  action.  [Amendment  approved  March  9,  1880; 
Amendments  1880,  p.  3.     In  effect  March  9,  1880.] 

§  549.  If  any  personal  property  attached  be 
claimed  by  a  third  person  as  his  property,  the 
same  rules  shall  prevail  as  to  the  contents  and 
making  of  said  claim,  and  as  to  the  holding  of  said 
property,  as  in  case  of  a  claim  after  levy  upon 
execution,  as  provided  for  in  section  six  hundred 


217  ATTACHMENT.  §§  550,  551 

and  eigbty-uiue  of  the  Code  of  Civil  Procedure. 
[Ameudmeut  approved  March  2.  1891;  Stats.  1891, 
p.  20.] 

Jury,  etc.:  Sec.  089. 

Sureties  on  iudemuity.— If  sheriff  gives  to  sure- 
ties notice  of  action  brought  against  him,  the  sure- 
ties are  liable  on  the  judgment:  Sec.  1055. 

§  550.  If  judgment  be  recovered  by  the  plain- 
tiff, the  sheriff  must  satisfy  the  same  out  of  the 
property  attached  by  him  which  has  not  been  de- 
livered to  the  defendant  or  a  claimant  as  herein- 
before provided,  or  subjected  to  execution  on  an- 
other judgment,  recovered  previous  to  the  issuing 
of  the  attachment,  if  it  be  sufficient  for  that  pur- 
pose: 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all 
sales  of  perishable  property  sold  by  him,  or  of  any 
debts  or  credits  collected  by  him,  or  so 'much  as 
shall  be  necessary  to  satisfy  the  judgment: 

2.  If  any  balance  remain  due,  and  an  execution 
shall  have  been  issued  on  the  judgment,  he  must 
sell  under  the  execution  so  much  of  the  property, 
real  or  personal,  as  may  be  necessary  to  satisfy 
the  balance,  if  enough  for  that  purpose  remain  in 
his  hands.  Notices  of  the  sales  must  be  given. 
and  the  sales  conducted  as  in  other  cases  of  sales 
on  execution. 

Disposition  of  proceeds. — Action  against  sheriff 
for  amount,  and  twenty-five  per  cent,  damages, 
and  ten  per  cent,  per  month  interest,  if  he  neg- 
lect to  pay  over  moneys:  Sec.  4181,  Polit.  Code; 
preference,  claims  for  labor,  wages  etc.,  sec.  1200. 

Sales  on  execution:  Sec.  092-709. 

§  551.  If,  after  selling  all  the  property  attached 
by  him  remaining  in  his  hands,  and  applying  the 
proceeds,  together  with  the  proceeds  of  any  debts 

Code  Civ.  Proc— 1<^. 


^' 


§§  552-554  ATTACHMENT.  218 

or  credits  collected  by  him,  deducting  his  fees,  to 
the  payment  of  the  judgment,  any  balance  shall 
remain  due,  the  sheriff  must  proceed  to  collect 
such  balance  as  upon  an  execution  in  other  cases. 
Whenever  the  judgment  shall  have  been  paid,  the 
sheriff,  upon  reasonable  demand,  must  deliver  over 
to  the  defendant  the  attached  property  remaining 
in  his  hands,  and  any  proceeds  of  the  property 
attached  unapplied  on  the  judgment. 

Proceedings  supplementary  to  execution:  See 
post,  sec.  714. 

§  552.  If  the  execution  be  returned  unsatisfied 
in  whole  or  in  part,  the  plaintiff  may  prosecute 
any  undertalving  given  pursuant  to  section  five 
hundred  and  forty,  or  section  five  hundred  and 
fifty-five,  or  he  may  proceed  as  in  other  cases  upon 
the  return  of  an  execution. 

§  553,  If  the  defendant  recover  judgment 
against  the  plaintiff,  any  undertaking  received  in 
tlie  action,  all  the  proceeds  of  sales  and  money 
collected  by  the  sheriff,  and  all  the  property  at- 
taclied  remaining  in  the  sheriff's  hands,  must  be 
delivered  to  the  defendant  or  his  agent;  the  order 
of  attachment  shall  be  discharged,  and  the  prop- 
erty released  therefrom. 

§  554.  Whenever  the  defendant  has  appeared 
in  the  action,  he  may,  upon  reasonable  notice  to 
the  plaintiff",  apply  to  the  court  in  which  the  action 
is  pending,  or  to  the  judge  thereof,  for  an  order  to 
discharge  tlie  attachment,  wholly  or  in  part;  and 
upon  the  execution  of  the  undertaking  mentioned 
in  tlie  next  section,  an  order  may  be  made,  releas- 
ing from  the  operation  of  the  attachment  any  or 
all  of  the  property  attached;  and  all  of  the  prop- 
erty so  released,  and  all  of  the  proceeds  of  the 
sales  thereof,  must  be  delivered  to  the  defendant. 


I 


219  ATTACHMENT.  §§  555,  E53 

upon  the  justification  of  the  sureties  on  the  under- 
taking, if  required  by  the  plaintiff.     Amendment 
approved  March  9,  1880;  Amendments  1880,  p.  4. 
In  effect  March  9,  1880.] 
Appearance:  Sec.  1014. 

§  555.  Before  making  such  order,  the  court  or 
judge  must  require  an  undertaking  on  behalf  of 
the  defendant,  by  at  least  two  sureties,  residents 
and  freeholders,  or  householders,  in  the  State,  to 
the  effect  that  in  case  the  plaintiff  recover  judg- 
ment in  the  action,  defendant  will,  on  demand,  re- 
deliver the  attached  property  so  released  to  the 
proper  officer,  to  be  applied  to  the  payment  of  the 
judgment,  or,  in  default  thereof,  that  the  defend- 
ant and  sureties  will,  on  demand,  pay  to  the  plain- 
tiff the  full  value  of  the  property  released.  The 
court  or  judge  making  such  order  may  fix  the  sum 
for  which  the  undertaking  must  be  executed,  and 
if  necessary  in  fixing  such  sum  to  know  the  value 
of  the  property  released,  the  same  may  be  ap- 
praised by  one  or  more  disinterested  persons,  to  be 
appointed  for  that  purpose.  The  sureties  may  be 
required  to  justify  before  the  court  or  judge,  and 
the  property  attached  cannot  be  released  from  the 
attachment  without  their  justification,  if  the  same 
be  required.  [Amendment  approved  March  24, 
1874;  Amendments  1873-4,  p.  808.  In  effect  July 
1,  1874.  J 

Undertakings,  generally:  Sees.  259,  subd.  3;  495; 
581,  subd.  1,  941,  1057. 

Undertaking  to  prevent  attachment:  Sec.  540. 

Court  commissioners,  power  to  take  bonds,  ex- 
amine sureties,  etc.:  Sec.  259,  subd.  3. 

Sureties,  qualifications  of:  Sec.  1057. 

Justification:  Sec.  495. 

§  556.    The  defendant   may   also  at   any  time, 


§§  557-559  ATTACHMENT.  220 

either  before  or  after  the  release  of  the  attached 
property,  or  before  any  attachment  shall  have 
been  actually  levied,  apply  on  motion,  upon  rea- 
sonable notice  to  the  plaintiff,  to  the  court  in 
which  the  action  is  brought,  or  to  a  judge  thereof, 
that  the  writ  of  attachment  be  discharged  on  the 
ground  that  the  same  was  improperly  or  irregu- 
larly issued.  [Amendment  approved  March  9, 
1880;  Amendments  1880.  p..  4.  In  effect  March  9, 
1880.  J 

§  557.  If  the  motion  be  made  upon  affidavits 
on  the  part  of  the  defendant,  but  not  otherwise, 
the  plaintiff  may  oppose  the  same  by  affidavits 
or  other  evidence,  in  addition  to  those  on  which 
the  attachment  was  made. 

On  affidavits,  compare  application  to  dissolve  in- 
junction: Sec.  532. 

§  558.  If,  upon  such  application,  it  satisfactor- 
ily appears  that  the  writ  of  attachment  was  im- 
properly or  irregularly  issued,  it  must  be  dis- 
charged. 

§  559.  The  sheriff  must  return  the  writ  of  at- 
tachment with  the  summons,  if  issued  at  the  same 
time;  otherwise,  within  twenty  days  after  its  re- 
ceipt, with  a  certificate  of  his  proceedings  in- 
dorsed thereon  or  attached  thereto;  and  when- 
ever an  order  has  been  made  discharging  or  re- 
leasing an  attachment  upon  real  property,  a  certi- 
fied copy  of  such  order  may  be  filed  in  the  offices 
of  the  county  recorders  in  which  the  notices  of  at- 
tachment have  been  filed,  and  be  indexed  in  like 
manner.  [Amendment  approved  March  3,  1876; 
Amendments  1875-G,  p.  91.] 

Notices  of  attachment  filed:  Sec.  542,  subds.  1,  2. 

lieturn  of  iij^ventory  with  writ:  See  sui)ra,  sec. 
546. 


iteiurn  or  iiivei 


221  RECEIVERS.  §  564 

CHAPTER  V. 

RECEIVERS. 

§  564.  Appointment  of  receiver. 

§  565.  Appointment    of    receivers    upon    dissolution    of    cor- 
poration. 

§  566.  Who   shall    not   be   appointed. 

§  567.  Oath   and   undertaking. 

§  568.  Powers  of  receivers. 

§  569.  Investment  of  funds. 

§  564.  A  receiver  may  be  appointed  by  the 
court  in  which  an  action  is  pending-,  or  by  the 
judge  tliereol': 

1.  In  an  action  by  a  vendor  to  vacate  a  fraud- 
ulent purcliase  of  property,  or  by  a  creditor  to 
subject  any  property  or  fund  to  his  claim,  or  be- 
tween partners  or  others  jointly  owning  or  inter- 
ested in  any  property  or  fund,  on  the  application 
of  the  plaintiff,  or  of  any  party  whose  right  to 
or  interest  in  the  property  or  fund,  or  the  pro- 
ceeds thereof,  is  probable,  and  where  it  is  shown 
that  the  property  or  fund  is  in  danger  of  being 
lost,  removed,  or  materially  injured; 

2.  In  an  action  by  a  mortgagee  for  the  fore- 
closure of  his  mortgage  and  sale  of  the  mort- 
gaged property,  Avhere  it  appears  that  the  mort- 
gaged property  is  in  danger  of  being  lost,  re- 
moved, or  materially  injured,  or  that  the  condition 
of  the  mortgage  has  not  been  performed,  and  that 
the  property  is  probably  insuflicient  to  discharge 
the  mortgage  debt; 

3.  After  judgment,  to  carry  the  judgment  into 
effect; 

4.  After  judgment,  to  dispose  of  the  property 
according  to  the  judgment,  or  to  preserve  it  during 
the  pendency  of  an  appeal,  or  in  proceedings  in  aid 
of  execution,  when  an  execution  has  been  return- 


§§  565,  566  RECEIVERS.  222 

ed  uusatisfied,  or  when  the  judgment  debtor  re- 
fuses to  apply  his  property  in  satisfaction  of  the 
judgment; 

5.  In  the  cases  when  a  corporation  has  been  dis- 
solved, or  is  insolvent,  or  in  imminent  danger  of 
insolvency,  or  has  forfeited  its  corporate  rights; 

G.  In  all  other  cases  where  receivers  have  here- 
tofore been  appointed  by  the  usages  of  courts  of 
equity. 

§  565.  Upon  the  dissolution  of  any  corporation, 
the  Superior  Court  of  the  county  in  which  the  cor- 
poration carries  on  its  business,  or  has  its  princi- 
pal place  of  business,  on  application  of  any  cred- 
itor of  the  corporation,  or  of  any  stockholder  or 
member  thereof,  may  appoint  one  or  more  per- 
sons to  be  receivers  or  trustees  of  the  corpora- 
tion, to  take  charge  of  the  estate  and  effects 
thereof,  and  to  collect  the  debts  and  property  due 
and  belonging  to  the  corporation,  and  to  pay  the 
outstanding  debts  thereof,  and  to  divide  the 
moneys  and  other  property  that  shall  remain  over, 
among  the  stockholders  or  members.  [Amend- 
ment approved  March  9,  1880;  Amendments  1880, 
p.  4.     In  effect  March  1),  1880.  J 

Dissolution,  involuntary:  Civ.  Code,  see  sees.  399, 
400,  and  this  Code,  sec.  802  et  seq.;  voluntary,  sec. 
1227  et  seq.,  post. 

§  566.  No  party,  or  attorney,  or  person  inter- 
ested in  an  action,  or  related  to  any  judge  of  the 
court  by  consanguinity  or  affinity  within  the  third 
degree,  can  be  appointed  receiver  therein  without 
the  written  consent  of  the  parties,  filed  with  the 
clerk.  If  a  receiver  be  appointed  upon  an  ex  parte 
application,  the  court,  before  making  the  order, 
may  require  from  the  applicant  an  undertaking, 
v.'jth  sufficient  sureties,  in  an  amount  to  be  fixed 


223  RECEIVERS.  §  567 

by  the  court,  to  the  effect  that  the  applicant  will 
pay  to  the  defendant  all  damages  he  may  sustain 
by  reason  of  the  appointment  of  such  receiver  and 
the  entry  by  him  upon  his  duties,  in  case  the  appli- 
cant shall  have  procured  such  appointment  wrong- 
fully, maliciously,  or  without  sufficient  cause;  and 
the  court  may,  in  its  discretion,  at  any  time  after 
said  appointment,  require  an  additional  undertak- 
ing.    [Approved  March  3,  1897;  Stats.  1897,  c.  69.] 

Stats.  1850,  sees.  16,  18;  1862,  sec.  25. 

Undertalvings  generally:  Sec.  941. 

Qualifications  of  sureties:  Sec.  1057. 

Court  commissioners,  powers  to  tali;e  undertak- 
ings, examine  sureties,  etc.:  Sec.  259,  subd.  3. 

Dismissal  of  action  on.— Clerk  to  hand  undertak- 
ing to  defendant:  Sec.  581,  subd.  1. 

§  567.  Before  entering  upon  his  duties,  the  re- 
ceiver must  be  sworn  to  perform  them  faithfully, 
and  with  one  or  more  sureties,  approved  by  the 
court  or  judge,  execute  an  undertaking  to  such 
person,  and  in  such  sum  as  the  court  or  judge  may 
direct,  to  the  effect  that  he  will  faithfully  dis- 
charge the  duties  of  receiver  in  the  action,  and 
obey  the  orders  of  the  court  therein. 

Undertaking,  generally.— By  Political  Code,  sec. 

981,  "the  provisions  of  this  article  apply  to  the 
bonds  of  receivers,  executors,  administrators,  and 
guardians."  The  article  referred  to  is  part  3,  c.  7, 
art.  9,  and  comprises  Political  Code,  sees.  947  to 
986  inclusive.  Many  of  those  provisions  seem 
quite  inapplicable  to  the  undertaking  of  receivers, 
etc.,  and  want  of  space  prevents  the  insertion  of 
the  whole  in  this  place.     By  Political  Code,  sec. 

982,  bonds  or  undertakings  given  by  trustees,  re- 
ceivers, assignees,  or  officers  of  a  court,  are  to  be 
in  the  name  of  the  State  of  California,  and  may 


u 


§§  568,  572  DEPOSIT  IN  COURT.  224 

by  order  of  the  court  be  prosecuted  for  the  benefit 
of  any  person  interested.  Undertakings,  generally: 
8ec.  D41,  post. 

§  568.  The  receiver  has,  under  the  control  of 
the  court,  po\N'er  to  bring  and  defend  actions  in 
his  own  name,  as  receiver;  to  talie  and  keep  pos- 
session of  the  property,  to  receive  rents,  collect 
debts,  to  compound  for  and  compromise  the  same, 
to  make  transfers,  and  generally  to  do  such  acts 
respecting  the  property  as  the  court  may  author- 
ize. 

§  569.  Funds  in  the  hands  of  a  receiver  may 
be  invested  upon  interest,  by  order  of  the  court; 
but  no  such  order  can  be  made,  except  upon  the 
consent  of  all  the  parties  to  the  action. 


CHAPTER  YI. 

DEPOSIT  IN  COURT. 

§  572.     Deposit  in  court. 

§  673.    Money  paid  to  clerk  must  be  deposited  with  courty 

treasurer. 
§  574.     Manner  of  enforcing  the  order. 

§  572.  When  it  is  admitted  by  the  pleading,  or 
shown  upon  the  examination  of  a  party,  that  he 
has  in  his  possession,  or  under  his  control,  any 
money  or  other  thing  capable  of  delivery,  which, 
being  the  subject  of  litigation,  is  held  by  him  as 
trustee  for  another  party,  or  which  belongs  or  is 
due  to  another  party,  the  court  may  order  the 
same,  upon  motion,  to  be  deposited  in  court  or  de- 
livered to  such  party,  upon  such  conditions  as  may 
be  just,  subject  to  the  further  direction  of  the 
court. 

Deposit  with  clerk:  See,  further,  sec.  2104. 


i 


225  DEPOSIT   IN   COURT.  §§  573,  574 

§  573.  If  the  money  is  deposited  iu  court,  it 
must  be  paid  to  the  cleric,  who  must  deposit  it 
with  the  couuty  treasurer,  by  him  to  be  held  sub- 
ject to  the  order  of  the  court.  For  the  safekeeping 
of  the  money  deposited  with  him  the  treasurer  is 
liable  on  his  official  bond. 

Deposit  with  cleric:  Sec.  2104. 

§  574.  Whenever,  in  the  exercise  of  its  author- 
ity, a  court  has  ordered  the  deposit  or  delivery  of 
money  or  other  thing,  and  the  order  is  disobeyed, 
the  court,  besides  punishing  the  disobedience,  may 
make  an  order  requiring  the  sheriff  to  take  the 
money  or  thing  and  deposit  or  deliver  it  in  con- 
formity with  the  direction  of  the  court. 

Punishing  the  disobedience,  contempt:  Sec.  1209. 

Sheriff's  duties,  as  to  official  moneys:  Polit. 
Code,  sec.  4181. 


^ 


TITLE  VIIT. 

OF  THE  TRIAL  ANI>  JUDGMENT  IN  CIVIL  ACTIONS. 

Chapter  I.    Jud.2:ment  in  general. 

II.    Judgment  upon  failure  to  answer, 

III.  Issues— the  modes  of  trial  and  post- 

ponements. 

IV.  Trial  by  jury. 

Y.  Trial  by  the  Court. 

VI.  Of  references  and  trials  by  referees. 

VII.  Provisions  relating  to  trials  in  general. 

VIII.  The  manner  of  giving  and  entering 

judgment. 


CHAPTER  I. 

JUDGMENT   IN   GENERAL. 

§  577.  Judgment  defined. 

§  578.  Judgment  may  be  for  or  against  one  of  the  parties. 

§  579.  Judgment  may  be  against  one  party  and  action  pro- 
ceed as  to  others. 

§  580.  The  relief  to  be  awarded  to  the  plaintiff. 

§  581.  Action  may  be  dismissed  or  nonsuit  entered. 

§  582.  All  other  judgments  are  on  the  merits. 

§  577.  A  judgment  is  the  final  determination  of 
the  rights  of  the  parties  in  an  action  or  proceed- 
ing. 

Judgment  confession  by:  Sec.  1132;  default  by, 
sec.  585;  demurrer  on.  sec.  (>3G;  estoppel  as  to,  sec. 
1908;  generally,  G64;  nonsuit,  sec.  581;  pleadings, 
judgment  on,  sec.  582;  on  trial  by  court,  sec.  633; 
on  trial  by  jury.  sec.  GG4. 

Order  defined:  Sec.  1003. 

Final  judgment:  See,  also,  sees.  664,  939,  post. 


227  JUDGMENT    IN    GENERAL.  §§  578-581 

§  578.  Judgment  may  be  given  for  or  against 
one  or  more  of  several  plaintiffs,  and  for  or 
against  one  or  more  of  several  defendants,  and 
it  may,  when  the  justice  of  the  case  requires  it, 
determine  the  ultimate  rights  of  the  parties  on 
each  side,  as  between  themselves. 

Strilving  out  party:  Sec.  473. 

Fresh  parties,  bringing  in:  Sec.  389. 

Service  on  one  defendant  out  of  several,  effect 
of:  Sec.  414. 

Joint  debtors,  proceedings  against:  Sec.  989. 

.Joining  persons  severally  liable  on  same  instru- 
ment: Sec.  383. 

Association,  action  against  persons  under  name 
of:  Sec.  388. 

§  579.  In  an  action  against  several  defendants, 
the  court  may,  in  its  discretion,  render  judgment 
against  one  or  more  of  them,  leaving  the  action  to 
proceed  against  the  others,  -whenever  a  several 
judgment  is  proper. 

Striking  out  party:  Sec.  473. 

Fresh  parties,  bringing  in:  Sec.  389. 

Service  on  one  defendant  out  of  several,  effect 
of:  Sec.  414. 

.Joint  debtors,  proceedings  against:  Sec.  989. 

Joining  persons  severally  liable  on  same  instru- 
ment: Sec.  383. 

§  580.  The  relief  granted  to  the  plaintiff,  if 
there  be  no  answer,  cannot  exceed  that  which  he 
shall  have  demanded  in  his  complaint;  but  in  any 
other  case,  the  court  may  grant  him  any  relief  con- 
sistent with  the  case  made  by  the  complaint  and 
embraced  within  the  issue. 

§  581.    An  action  may  be  dismissed,  or  a  judg- 
V  ment  of  nonsuit  entered,  in  the  following  cases: 


§  581         JUDGMENT  IN  GENERAL.  228 

1.  By  the  plaintiff  himself,  by  written  request  to 
the  clei'li,  tiled  among  the  papers  in  the  case,  at 
any  time  before  trial,  upon  payment  of  costs;  pro- ' 
\ided,  a  counter-claim  has  not  been  made,  or  af- 
firmative relief  sought  by  the  cross  complaint  or 
answer  of  the  defendant.  If  a  provisional  rem- 
edy has  been  allowed,  tlie  undertaking  must  there- 
upon be  delivered  by  the  clerlv  to  the  defendant, 
who  may  have  his  action  thereon; 

2.  By  either  party  upon  tlie  written  consent  of 
the  other; 

3.  By  the  court,  when  the  plaintiff  fails  to  ap- 
pear on  the  trial,  and  the  defendant  appears  and 
asks -for  the  dismissal; 

4.  By  the  court,  when,  upon  the  trial  and  be- 
fore the  final  submission  of  the  case,  the  plaintiff 
abandons  it; 

5.  By  the  court,  upon  motion  of  the  defendant, 
when  upon  the  trial  the  plaintiff'  fails  to  prove  a 
sufficient  case  for  the  jury; 

G.  By  the  court,  when,  after  verdict  or  final  sub- 
mission, the  party  entitled  to  judgment  neglects  to 
demand  and  have  the  same  entered  for  more  than 
six  months. 

The  dismissals  mentioned  in  subdivisions  one 
and  two  hereof  are  made  by  entrj'  in  the  clerk's 
register. 

The  dismissals  mentioned  in  subdivisions  three, 
four,  five,  and  six  of  this  section,  shall  be  made 
by  orders  of  the  court  entered  upon  the  minutes 
thereof,  and  shall  be  effective  for  all  purposes 
when  so  entered,  but  the  clerk  of  the  court  shall 
note  such  orders  in  his  register  of  actions  in  the 
case. 

7.  And  no  action  heretofore  or  hereafter  com- 
menced shall  be  further  prosecuted,  and  no  further 
proceedings  shall  be  had  therein,  and  all  actions 
lieretofore  or  hereafter  commenced  shall  be  dis- 


229    JUDGMENT  UPON  FAILURE  TO  ANSWER.  §§  582,  585 

missed  by  the  court  iu  which  the  same  shall  have 
l>eeii  commenced,  on  its  own  motion,  or  on  mo- 
tion of  any  party  interested  tlierein,  whether 
named  in  the  complaint  as  a  party  or  not,  unless 
summons  shall  have  been  issued  within  one  year, 
and  all  such  actions  shall  be  in  like  manner  dis- 
missed, unless  the  summons  shall  be  served  and 
return  thereon  made  within  three  years  after  the 
commencement  of  said  action.  But  all  such  ac- 
tions may  be  prosecuted,  if  appearance  has  been 
made  by  the  defendant  or  defendants,  within  said 
three  years  in  the  same  manner  as  if  summons  had 
been  issued  and  served.  [Approved  March  9, 
1S97;  Stats.  1S97,  c.  95.J 

This  section  was  also  amended  in  1895;  Stats. 
1895,  p.  31. 

Dismissal  for  Tsant  of  prosecution:  See  sec.  594. 

Variance,  fatal  or  otherwise:  Sees.  469-471. 

Trial.— Either  party  may  bring  on:  Sec.  594. 

§  582.  In  every  case,  other  than  those  men- 
tioned in  the  last  section,  judgment  must  be  ren- 
dered on  the  merits. 

''^"^  CHAPTER  II. 

JUDGMENT   UPON   FAILURE   TO   ANSWER. 
§  585.     In  what  cases  judgment  may  be  had  upon  the  fail- 
ure of  the  defendant  to  answer. 

§  585.  Judgment  may  be  had,  if  the  defendant 
fail  to  answer  the  complaint,  as  follows: 

1.  In  an  action  arising  upon  contract  for  the 
recovery  of  money  or  damages  only,  if  no  answer 
lias  been  filed  with  the  clerk  of  the  court  within 
the  time  specified  in  the  summons,  or  such  further 
time  as  may  have  been  granted,  the  clerk,  upon 
application  of  the  plaintiff,  must  enter  the  default 
of  the  defendant,  and  immediately  thereafter  enter 
judgment  for  the  amotmt  specified  in  the  sum- 
mons, including  the  costs,  against  the  defendant, 
or  against  one  or  more  of  several  defendants  in 
Code  Civ.  Proc— 20. 


§  585     JUDGMENT  UPON    FAILURE    TU    ANSWER.         2.'>0 

the  cases  proA'ided  fur  in  section  four  Imudred  aiul 
fourteeu; 

2.  lu  other  actious,  if  no  answer  has  been  lih-vl 
with  the  clerk  of  the  court  within  the  time  sjiiHi- 
fied  in  the  summons,  or  such  further  time  as  iiia\ 
have  been  granted,  the  clerlv  must  enter  the  dv- 
fault  of  the  defendant;  and  thereafter  tlie  phiintiff 
maj'  apply  at  the  iirst  or  any  subsecjuent  term  of 
the  court  for  the  relief  demanded  in  the  complaint. 
If  the  taking  of  an  account,  or  the  proof  of  any 
fact,  is  necessary,  to  enable  the  court  to  give  judg- 
ment, or  to  carry  tiie  judgment  into  effect,  ilie 
court  may  take  the  account  or  hear  the  proof;  or 
may,  in  its  discretion,  order  a  reference  for  that 
purpose.  And  where  the  action  is  for  the  recovery 
of  damages,  in  whole  or  in  part,  the  court  may 
order  the  damages  to  be  assessed  by  a  jury;  or  if, 
to  determine  the  amount  of  damages,  the  examina- 
tion of  a  long  account  be  involved,  by  a  reference 
as  above  provided; 

3.  In  actions  Avhere  the  service  of  the  summons 
was  by  publication,  the  plaintiff,  upon  the  expira 
tion  of  the  time  for  answering,  may,  upon  proof  of 
the  publication,  and  that  no  answer  has  been  filed, 
apply  for  judgment;  and  the  court  must  thereupon 
require  proof  to  be  made  of  the  demand  mentioned 
in  the  complaint;  and  if  the  defendant  be  not  a 
resident  of  the  State,  must  require  the  plaintiff,  or 
his  agent,  to  be  examined  on  oath,  respecting  any 
payments  tliat  have  been  made  to  the  plaintiff,  or 
to  any  one  for  his  use,  on  account  of  such  demand, 
and  may  render  judgment  for  the  amount  which 
he  is  entitled  to  recover. 

Pleadings,  judgment  on:  Sec.  582. 

As  to  validity  of  service  of  summons:  Sec.  411. 

Names,    fictitious,    amending,    etc.:    Sec.    474. 

Appeal:  Sec.  939. 

Award,  judgment  on:  Sec.  1286. 


231  ISSUES.  §  588 

Confession,  judgment  by:  Sec.  1133. 

Dollars  and  cents,  without  fractions,  money 
judgments  must  be  in:  Polit  Code,  sec.  3274. 

Fiduciary  capacity,  judgment  against  person  in: 
Sec.  6G7. 

Gold  coin,  judgment  in:  Sec.  667, 

Joint  debtors,  proceedings  against:  Sec.  989. 

Judgment,  generally,  docketing,  satisfaction, 
etc.:  Sees.  664-675. 

Judgment,  void,  etc.,  setting  aside:  Sec.  473, 

Mechanics'  lien,  judgment  on:  Sec.  1193. 

Objections,  waiver  of,  by  not  demuiTing  or  an- 
swering: Sec.  434. 

Particulars,  after  order  for:  Sec.  454. 

Feuding,  action  when:  Sec.  1049. 

Reference:  Sees.  6.3S,  639. 

■Replevin,  judgment  in:  Sec.  667. 


CHAPTER  III. 

iSSUES-THE  MODE  OF  TRIAL  AND  POSTPONEMENTS. 

§  588.  Issue  defined,   and  the  different  kinds. 

589.  Issue  of  law,    how   raised. 

590.  Issue  of  fact,  how  raised. 

591.  Issue  of  law,  how  tried. 

§  592.  Issue  of  fact,  how  tried.  When  issues  both  of  law 
and  fact,  the  former  to  be  first  disposed  of. 

§  593.  Clerk  must  enter  causes  on  the  calendar,  to  remain 
until  disposed  of. 

5  594.     Parties  may  bring  issue  to  trial. 

§  595.  Motion  to  postpone  a  trial  for  absence  of  testimony, 
requisites   of. 

§  596.  In  cases  of  adjournment  a  party  may  have  the  tes- 
timony of  any  witness  taken. 

§  588.  Issues  arise  upon  the  pleadings  when  a 
fact  or  conclusion  of  law  is  maintained  by  the  one 
party,  and  is  controverted  by  the  other.  They  are 
of  two  Idnds: 

1.    Of  Inw;  and. 


§§  5S9-503  ISSUES.  232 

2.    Of  fact. 

See  sees.  589,  590. 

§  589.  An  issue  of  law  arises  upon  a  demurrer 
to  the  complaint  or  answer,  or  to  some  part 
thereof. 

§  590.    An  issue  of  fact  arises— 

1.  Upon  a  material  allegation  in  the  complaint 
controverted  by  the  answer;  and, 

2.  Upon  new  matters  in  the  answer,  except  an 
issue  of  law  is  joined  thereon. 

§  591.    An  issue  of  law  must  be  tried  by  the 
court,  unless  it  is  referred  upon  consent. 
Trial  by  court,  generally:  Sec.  G31  et  seq. 

§  592.  In  actions  for  The  recovery  of  specific 
real  or  personal  property,  Avith  or  without  dam- 
ages, or  for  money  claimed  as  due  upon  contract, 
or  as  damages  for  breach  of  contract,  or  for  in- 
juries, an  issue  of  fact  must  be  tried  by  a  jury, 
unless  a  jury  trial  is  waived,  or  a  reference  is  or- 
dered, as  provided  in  this  Code.  Where  in  these 
cases  there  are  issues  both  of  law  and  fact,  the  is- 
sue of  law  must  be  first  disposed  of.  In  other 
cases,  issues  of  fact  must  be  tried  by  the  court, 
subject  to  its  power  to  order  any  such  issue  to  be 
tried  by  a  jury,  or  to  be  referred  to  a  referee,  as 
provided  in  this  Code.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  p.  309.  In 
effect  July  1,  1874.] 

Generally,  as  to  jury  trial:  See  sees.  GOO-628. 

Waiver  of  jury  trial:  Sec.  631. 

Iteference:  Sees.  0.38-645. 

Court,  trial  by:  Sees.  631-636. 

§  593.  The  clerk  must  enter  causes  upon  the 
calendar  of  the   court  according  to   the  date  of 


233  ISSUES.  §§  594,  595 

issue.  Causes  once  placed  ou  the  calendar  must 
remain  upon  the  calendar  until  linally  disposed  of; 
provided,  that  causes  may  be  dropped  from  the 
calendar  by  consent  of  parties,  and  may  be  again 
restored  upon  notice.  [In  effect  March  9,  1880.] 

Clerk  placing  on  calendar,  mandamus  for  fail- 
ure: Sec.  108.J. 

Issue,  generally:  Sec.  588. 

Abolition  of  terms:  See  Const.  Cal.,  art.  G,  sec.  5. 


s,^^       §  594.    Either  party  may  bring  an  issue  to  trial 
^     or  to  a  hearing,  and  in  the  absence  of  the  adverse 
fs^.  party,  unless  the  court,  for  good  cause,  otherwise 
I      direct,  may  proceed  with  his  case,  and  take  a  dis- 
missal of  the  action,  or  a  verdict  or  judgment,  as 
the  case  may  require. 
Dismissal:  Sec.  581. 

Answer,   service  of,    where  plaintiff   cannot   be 
found:  Sec.  465. 
Surprise,  setting  aside  judgmeut  for:  Sec.  473. 
New  trial:  Sec.  057. 

§  595.  A  motion  to  postpone  a  trial  on  the 
ground  of  the  absence  of  evidence  can  only  be 
made  upon  aflidavit  showing  the  materiality  of  the 
evidence  expected  to  be  obtained,  and  that  due  dil- 
igence has  been  used  to  procure  it.  A  trial  shall 
be  postponed  Avhen  it  appears  to  the  court  that  the 
attorney  of  record,  party,  or  principal  Avitness  is 
actually  engaged  in  attendance  upon  a  session  of 
the  legislature  of  this  State  as  a  member  thereof. 
The  court  may  require  the  moving  party,  where 
application  is  made  on  account  of  the  absence  of 
a  material  witness,  to  state  upon  affidavit  the  evi- 
dence which  he  ex])ects  to  obtain;  and  if  the  ad- 
verse party  thereupon  admits  that  such  evidence 
would  be  given,  and     tliat     it     be  con.^idered  as 


§§  596,  600  TRIAL   BY  JURY.  234 

actually  given  on  the  trial,  or  offered  and  over- 
ruled as  improper,  the  trial  must  not  he  post- 
poned. [Amendment  approved  March  2,  1880; 
Amendments  1880,  p.  1.  In  effect  March  2,  1880.] 
Costs  on  continuance:  See  sec.  1029. 

§  596.  The  party  obtaining  a  postponement  of 
a  trial  in  any  court  of  record  must,  if  required  by 
the  adverse  party,  consent  that  the  testimony  of 
any  witness  of  such  adverse  party,  who  is  in  at- 
tendance, be  then  taken  by  deposition  before  a 
judge  or  clerk  of  the  "court  in  which  the  case  is 
pending,  or  before  such  notary  public  as  the  court 
may  indicate,  which  must  accordingly  be  done, 
and  the  testimony  so  taken  may  be  read  on  the 
trial,  with  the  same  effect,  and  subject  to  the 
same  objections,  as  if  the  witnesses  were  pro- 
duced. 

Depositions,  in  the  State:  Sees.  2019-2021,  2031- 
2038. 

CHAPTER  IV. 

TRIAL    BY    JURY. 

Article  I.     Formation   of  Jury. 
II.     Conduct  of  the  Trial. 
III.     The  Verdict. 

ARTICLE  I. 

FORMATION    OF   THE    JURY. 

§  600.    Jury,    how   drawn. 

§  601.    Challenges.    Each  party  entitled  to  four  peremptory 

challenges. 
§  602.    Grounds  of  challenge. 
§  603.     Challenges,  how  tried. 
§  604.    Jury  to  be  sworn. 

§  600.  When  the  action  is  called  for  trial  by 
jury,  the  clerk  must  draw  from  the  trial  jury  box 


235  TlilAL  BY   JURY.  g:)  601,  602 

of  the  court  the  ballots  containing  the  names  of 
the  jurors,  until  the  jury  is  completed  or  the  bal- 
lots are  exhausted. 

Jury,  generally,  sees.  190-254;  trial  jury,  sees. 
193,  194. 

Trial  by  jury,  conduct  of:  Sec.  607  et  seq.;  waiver 
of,  sec.  631;  verdict  after,  sec.  624  et  seq. 

Trial  jury  box:  Sec.  246. 

Jurors,  who  are  competent:  Sees.  198,  190. 

Exemptions  and  excuses:  Sees.  200-202. 

§  601.  Either  party  may  challenge  the  jurors; 
but  where  there  are  several  parties  on  either  side, 
they  must  join  in  a  challenge  before  it  can  be 
made.  The  challenges  are  to  individual  jurors, 
and  are  either  peremptory  or  for  cause.  Each 
party  is  entitled  to  four  peremptory  challenges.  If 
no  peremptory  challenges  are  taken  until  the  panel 
is  full,  they  must  be  talven  by  the  parties  alter- 
nately, commencing  with  the  plaintiff.  [Amend- 
ment approved  March  24,  1874;  Amendments  1873- 
4,  p.  310.     In  effect  July  1,  1874.] 

Challenge  for  cause:  Sec.  202. 


L 


§  602.  Challenges  for  cause  may  be  taken  on 
'one  or  more  of  the  following  grounds: 

1.  A  want  of  any  of  the  qualifications  prescribed 
by  this  Code  to  render  a  person  competent  as  a 
juror; 

2.  Consanguinity  or  affinity  within  the  fourth 
degree  to  any  party; 

3.  Standing  in  the  relation  of  guardian  and 
ward,  master  and  servant,  employer  and  clerk,  or 
principal  and  agent,  to  either  party,  or  being  a 
member  of  the  family  of  either  party,  or  a  part- 
ner in  business  with  either  party,  or  surety  on  any 
bond  or  obligation  for  either  party; 

4.  Having  served  as  a  juror  or  been  a  witness 


g§  603,  604  TRIAL    BY    JURY.  236 

on  a  previous  trial  between  ttie  same  parties,  for 
the  same  cause  of  action; 

5.  Interest  on  tlie  part  of  the  juror  in  the  event 
of  the  action,  or  in  the  main  question  involved  in 
the  action,  except  his  interest  as  a  member  or  cit- 
izen of  a  municipal  corporation; 

6.  Having-  an  unqualified  opinion  or  belief  as  to 
the  merits  of  the  action,  founded  upon  knowledge 
of  its  material  facts,  or  of  some  of  them; 

7.  The  existence  of  a  state  of  mind  in  the  juror 
evincing  enmity  against  or  bias  to  or  against 
either  party.  [Amendment  approved  March  24, 
1874;  Amendments  1873-4,  p.  310.  In  effect  July 
1,  1874.] 

Subd.  1.  Want  of  necessary  qualifications.— 
Competent  jurors:  Sec.  198.  Incompetent  jurors: 
Sec.  199.     Exemptions  and  excuses:  Sec.  200. 

Subd.  2.  Consanguinity  or  affinity,  generally: 
See  sec.  170,  ante. 

Challenge  in  criminal  causes:  See  Ten.  Code, 
sees.  1055  et  seq. 

§  603.  Challenges  for  cause  must  be  tried  by 
the  court.  The  juror  challenged  and  any  other 
person  may  be  examined  as  a  witness  on  the  trial 
of  the  challenge. 

§  604.  As  soon  as  the  jury  is  completed,  an 
oath  must  be  administered  to  the  jurors,  in  sub- 
stance, that  they  and  each  of  them  will  well  and 

truly  try  the  matter  in  issue  between  ,   the 

plaintiff,  and  ,  defendant,  and  a  true  verdict 

render,  according  to  the  evidence. 

Oath,  administration  of:  See  sees    2093-2097. 


237  TRIAL   BY   JURY.  §  607 

ARTICLE  IT. 
CONDUCT   OP   THE    TRIAL. 

§  607.     Order  of  proceedings  on  trial. 

§  608.  Cliarge  to  the  jury.  Court  must  furnish,  in  writing, 
upon  request,  the  points  of  law  contained  therein. 

§  609.     Special  instructions. 

§  610.    View  by  jury  of  the  premises. 

§  311.    Admonition  when  jury  permitted  to  separate. 

§  612.    Jury  may  take  with  them  certain  papers. 

§  613.     Deliberation  of  jury,  how  conducted. 

§  614.     May  come  into  court  for  further  instructions. 

§  615.     Proceedings  in  case  a  juror  becomes  sick. 

§  616.  When  prevented  from  giving  verdict,  the  cause  may 
be  again  tried. 

§  617.  While  jury  are  absent,  court  may  adjourn  from  time 
to  time.  Sealed  verdict.  Final  adjournment  dis- 
charges   the    jury. 

§  618.    Verdict,   how   declared.    Form   of.    Polling  the   jury. 

§  619.    Proceedings  when  verdict  is  informal. 

§  607.  "When  the  jury  li'^s  been  sworn,  the  trial 
iiiiist  proceed  in  tlie  followiniz:  order,  unless  the 
judge,  for  special  reasons,  otherwise  directs: 

1.  Tlie  plaintiff,  after  stating-  the  issue  and  his 
case,  must  produce  the  evidence  on  his  part; 

2.  Tlie  defendant  may  then  open  his  defense, 
and  offer  his  evidence  in  support  thereof. 

3.  The  parties  may  then  respectively  offer  rebut- 
ting evidence  only,  unless  the  court,  for  good  rea- 
son, in  furtherance  of  justice,  permit  them  to  of- 
fer evidence  upon  their  original  case; 

4.  When  the  evidence  is  concluded,  unless  the 
case  is  submitted  to  the  jury  on  either  side,  or  on 
both  sides,  without  argument,  the  plaintiff  must 
commence  and  may  conclude  the  argument; 

5.  If  several  defendants,  having  separate  de- 
fenses, appear  by  different  counsel,  the  court  must 
determine  their  relative  order  in  the  evidence  and 
argument; 


§  607  TRIAL  BY  JURY.  23S 

G.    The  court  may  then  charge  the  jury. 

Order  of  proof,  discretion  of  court,  as  to,  gen- 
erally:   Sec.    2042. 

Proceedings,  etc.,  on  trial. — Amendments:  Sec. 
473.  Arguments:  Sec.  607.  Charge  to  jury:  Sees. 
608,  609.  Contempts:  Sees.  1209-1222.  Contin- 
uance: Sees.  595,  596.  Crim.  con.,  private  trial:  Sec. 
125.  Damages,  interest,  etc.:  Sec.  426,  note.  Di- 
vorce, private  trial:  Sec.  125.  Either  party  may 
bring  on  trial:  Sec.  594.  Errors  to  be  disregarded: 
Sec.  475.  Exceptions:  Sees.  646-653.  Fact,  ques- 
tions of,  are  for  jury:  Sec.  2102.  Inspection 
of  writings:  Sec.  100.  Instructions  to  jury:  Sees. 
608,  609.  Judge,  disqualification  of:  Sec.  170. 
Language  of  proceedings:  Sees.  185,  1056.  Law^ 
questions  of,  are  for  court:  Sec.  2102.  Marriage, 
breach  of  promise  of,  private  trial:  Sec.  125.  Non- 
suit, etc.:  Sec.  581.  As  to  the  proof  necessary  to 
make  out  a  case,  see  sees.  1867,  1869,  post.  Phono- 
graphic reporters:  Sees.  269-274.  Place  of  trial: 
Sees.  392-400.  Pleadings,  construction  of:  Sees. 
452-465.  Proof,  etc.,  order  of:  Sees.  607,  2042.  Ref- 
erence, by  consent.  Sec.  638.  Compulsory:  Sec. 
639.  Seduction,  private  trial:  Sec.  125.  Title  of 
papers,  detective:  Sec.  1046.  Variance:  Sees.  469- 
471.  Arguments:  sec.  607.  Charging  the  jury: 
See  infra,  sees.  608,  609.  Verdict:  Sees.  624-628. 
View  by  jury:  Sec.  610. 

Evidence.— Admissibility  is  for  court:  Sec.  2102. 
Allegations,  material  only  need  be  proved:  Sec. 
1867.  Burden  of  proof:  Sees.  1869,  1981.  Declara- 
tions, acts,  admissions,  etc.:  Sees.  1848,  1854,  1870; 
sees.  2-8.  Estoppel:  Sees.  1962,  1978.  Indispensa- 
ble evidence,  including  statute  of  frauds,  etc.: 
Sees.  1967-1974.  Judicial  knowledge:  Sec.  1875; 
jury  to  accept:  Sec.  2102.  Presumptions:  Sees. 
1957-1963.  Offer  to  compromise:  Sees.  997,  2074, 
2078.    Proof,  order  of:  Sec.  2042.   Relevancy  of  evi- 


239  TRIAL   BY  JURY.  §  007 

dence,  sees.  18GS-1870.  Kelevancy,  eollatcnil  f.-icis: 
Sees.  lSi)8,  1870.     Tender:  Sec.  2U7U. 

Witnesi^es.— Affidavits:  Sees.  2(309-2015.  All  i;e.-- 
sons  may  be:  Sec.  1879:  iiieliidiiig-  judge:  Sec.  1883 ; 
exceptions:  Sees.  1880,  1881;  must  be  sworn,  or  a:- 
tirm:  Sec.  1840.  Answer,  witness  must:  Sec.  200."). 
Arrest  of  witness:  Sec.  2070.  Common  reputation, 
testimony  as  to:  Sec.  1870,  subd.  11.  Cumpelliuii- 
attendance:  Sees.  1085-1997,  2004.  Credibility; 
Sees.  1847,  1870,  sub  J.  10.  Cross-examination:  Sec. 
2048.  Depositions:  Sees.  2019-2038.  Terpetuating 
testimony:  Sees.  2083-2089.  Direct  examination: 
See.  2045.  Excluding  witnesses  from  court  room: 
Sec.  2043.  Experts:  Sec.  1870,  subd.  9.  Impeach- 
ing, and  evidence  of  good  character:  Sees.  2049- 
2054.  Insanity,  etc.,  opinion  as  to:  Sec.  1870, 
subd.  10.  Interpreters:  See.  1884.  Leading  ques- 
tions: See.  2046.  Mode  of  interrogation:  Sec.  2044. 
Oaths:  Sees.  2093-2097.  One  witness  sufficient  to 
prove  a  fact,  except  perjury  and  treason:  Sec. 
1844.  I'ersonal  knowledge,  M-itness  must  testify  as 
to:  Sec.  1845.  Presumed  to  speak  truth;  repelling 
presumption;  credibility  for  jury:  Sec.  1847.  Pro- 
tection of  witnesses:  See.  2066.  Refreshing  mem- 
ory: See.  2047.  Testimony,  clerk  to  take  down,  if 
no  shorthand  reporter:  See.  1051.  Usage,  testi- 
mony as  to:  See.  1870,  subd.  12.  Writing  shown 
to  witness,  other  side  may  see:  Sec.  2054. 

Writings. — Agreement  reduced  to:  See.  1856. 
(^ommon  reputation,  monuments,  family  books, 
ere.:  Stc.  1870,  subd.  13.  Construction:  Sees.  1857- 
18(>6;  is  for  court:  See.  2102;  descriptive  part  of 
conveyances  of  real  property:  See.  2077:  Sees.  1855. 
1870,  subd.  14.  Erasures:  See.  1982.  Inspection: 
See.  1000.  Private  writings:  Sees.  1929-1951.  Pub- 
lif  writings:  Sees.  1892-1926.     Receipts:  See.  2075. 

Material  objects.- (Jenerally:  See.  1954. 

.Tudicial   knowledge.— Generally:   Sec.    1875. 

Jury  to  accept:  Sec.  2102. 


§§  608-611  TRIAL    BY    JURY.  240 

§  608.  In  cbargiijg  the  jury,  the  court  iiuay 
state  to  tlieiii  all  matters  of  law  which  it  thiuks 
necessary  for  their  iuformation  in  giving  their 
verdict;  and  if  it  state  the  testimony  of  the  case,  it 
must  inform  the  jury  that  they  are  the  exclusive 
judges  of  all  questions  of  fact.  The  court  must 
furnish  to  either  party,  at  the  time,  upon  request, 
a  statement,  in  writing,  of  the  points  of  law  con- 
tained in  the  charge,  or  sign  at  the  time  a  state- 
ment of  such  points  prepared  and  submitted  by  the 
counsel  of  either  party. 

Matters  of  laAv,  court  stating  in  charge:  Const. 
Cal.,  art.  7,  sec.  ir-;  sec.  2102,  also  sec.  20G1;  sec. 
057,  subd.  7. 

§  609.  Where  either  party  asks  special  instruc- 
tions to  be  given  to  the  jury,  the  court  mtist  either 
give  such  instruction,  as  requested,  or  refuse  lo 
do  so,  or  give  the  instruction  with  a  moditication, 
in  such  manner  that  it  may  distinctly  appear  wliat 
instnictions  were  given  in  whole  or  in  part. 

Exceptions:  Sec.  046. 

§  610.  When,  in  the  opinion  of  the  court,  it  is 
proper  for  the  jury  to  have  a  view  of  the  properly 
which  is  the  subject  of  litigation,  or  of  the  place 
in  which  any  material  fact  occurred,  it  may  order 
them  to  be  conducted,  in  a  body,  under  the  charge 
of  an  otticer,  to  the  place,  which  shall  be  shown  to 
them  by  some  person  appointed  by  the  court  for 
that  purpose.  While  the  jury  are  thus  absent,  no 
person,  other  than  1he  person  so  appointed,  shall 
speak  to  them  on  any  subject  connected  with  the 
trial. 

§  611.  If  the  jury  are  permitted  to  separate, 
either  during  the  trial  or  after  the  case  is  sub 
initted  to  them,  they  shall  be  admonished  by  the 


211  TRIAL  BY  JURY.  §§  312-614 

convt  that  it  is  tlieir  duty  uot  to  converse  with  or 
sutler  themselves  to  be  addressed  by  any  other 
person  on  any  subject  of  the  trial,  and  that  it 
is  their  duty  not  to  form  or  express  an  opinion 
thereon  nntil  the  case  is  finally  submitted  to 
them. 

§  612.  Upon  retiring  for  deliberation,  the  jury 
may  take  with  them  all  papers  which  have  been 
received  as  evidence  in  the  cause,  except  deposi- 
tions or  copies  of  such  papers  as  ought  not,  in  the 
opinion  of  the  court,  to  be  taken  from  the  person 
having  them  in  possession;  and  they  may  also  take 
with  them  notes  of  the  testimony  or  other  pro- 
ceedings on  the  trial,  taken  by  themselves,  or  any 
of  them,  but  none  taken  by  any  other  person. 

§  613.  When  the  case  is  finally  submitted  to  the 
jury,  they  may  decide  in  court  or  retire  for  delib- 
eration; if  they  retire,  they  must  be  kept  together, 
in  some  convenient  place,  under  charge  of  an  offi- 
cer, until  at  least  three-fourths  of  them  agree  up- 
on a  verdict  or  are  discharged  by  the  court.  Unless 
by  order  of  the  court,  the  officer  having  them  un- 
der his  charge  must  not  suffer  any  communication 
to  be  made  to  them,  or  make  any  himself,  except 
to  ask  them  if  they  or  three-fourths  of  them  are 
agreed  upon  a  verdict;  and  he  must  not,  before 
their  verdict  is  rendered,  communicate  to  any  per- 
son the  state  of  their  deliberations,  or  the  verdict 
agreed  upon.  [Amendment  approved  March  10, 
1880;  Amendments  1880,  p.  10.  In  effect  March  10, 
1880.] 

Three-fourths,  agreement  of,  amendment,  1880: 
See  Const.  Cal.,  art.  1,  sec.  7. 

§  614.    After  the  jury  have  retired  for  delibera- 
tion, if  there  be  a  disagreement  between  them  as 
Code  Civ.   Proc— 21. 


?§  615-617  TRIAL,  BY  JURY.  242 

to  any  part  of  the  testimony,  or  if  they  desire  to 
be  informed  of  any  point  of  law  arising  in  the 
cause,  they  may  require  the  officer  to  conduct 
them  into  court.  Upon  their  being  brought  into 
court,  the  information  required  must  be  given  in 
the  presence  of,  or  after  notice  to,  the  parties  or 
counsel. 

Holidays,  Sundays,  etc.— Instructions  may  be 
given  to  juries  deliberating  on:  Sec.  134,  subd.  1. 

On  nonjudicial  days:  Sec.  134,  subd.  1. 

§  615.  If,  after  the  impaneling  of  the  jury,  and 
before  verdict,  a  juror  become  sick,  so  as  to  be  un- 
able to  perform  his  duty,  the  court  may  order  him 
to  be  discharged.  In  that  case  the  trial  may  pro- 
ceed with  the  other  jurors,  or  another  juror  may 
be  sworn  and  the  trial  begin  anew;  or  the  jury 
may  be  discharged  and  a  new  jury  then  or  after- 
ward impaneled. 

§  616.  In  all  cases  where  the  jury  are  dis- 
charged, or  prevented  from  giving  a  verdict,  by 
reason  of  accident  or  other  cause,  during  the  pro- 
gress of  the  trial,  or  after  the  cause  is  submit- 
ted to  them,  the  action  may  be  again  tried  Im- 
mediately, or  at  a  future  time,  as  the  court  may 
direct. 

§  617.  While  the  jury  are  absent  the  court  may 
adjourn  from  time  to  time,  in  respect  to  other 
business;  but  it  is  nevertheless  open  for  every  pur- 
pose connected  with  the  cause  submitted  to  the 
jury  until  a  verdict  is  rendered  or  the  jury  dis- 
charged. The  court  may  direct  the  jury  to  bring 
in  a  sealed  verdict,  at  the  opening  of  the  court,  in 
case  of  an  agreement  during  a  recess  or  adjourn- 
ment for  the  day.  [Amendment  approved  March 
]0,  1880;  Amendments  1880,  p.  10.  In  effect  March 
10,  1880.] 


243  TRIAL  BY  JURY.  §§  618,  624 

§  618.  When  the  jury,  or  three-fourths  of  them, 
have  agreed  upon  a  verdict,  they  must  be  conduct- 
ed into  court,  their  names  called  by  the  clerk,  and 
the  verdict  rendered  by  their  foreman;  the  verdict 
must  be  in  writing,  signed  by  the  foreman,  and 
must  be  read  by  the  clerk  to  the  jury,  and  the  in- 
quiry made  whether  it  is  their  verdict.  Either 
party  may  require  the  jury  to  be  polled,  which  is 
done  by  the  court  or  clerk  asking  each  juror  if  it  is 
his  verdict;  if  upon  such  inquiry  or  polling,  more 
than  one-fourth  of  the  jurors  disagree  thereto,  the 
jury  must  be  sent  out  again,  but  if  no  such  disa- 
greement be  expressed,  the  verdict  is  complete  and 
the  jury  discharged  from  the  case.  [Amendment 
approved  March  10,  1880;  Amendments  1880,  p. 
10.    In  effect  March  10,  1880.] 

Verdict  received,  on  nonjudicial  day:  Sec.  134. 

§  619.  When  the  verdict  is  announced,  if  it  is 
informal  or  insufficient  in  not  covering  the  issue 
submitted,  it  may  be  corrected  by  the  jury  under 
the  advice  of  the  court,  or  the  jury  may  be  again 
sent  out. 

ARTICLE  III. 

THE   VERDICT. 

§  624.     General   and  special  verdicts   defined. 

§  625.    When  a  general  or  special  verdict  may  be  rendered. 

§  626.  Verdict  in  actions  for  recovery  of  money  or  on  es- 
tablishing counterclaim. 

§  627.  Verdict  in  actions  for  the  recovery  of  specific  per- 
sonal  property. 

§  628.     Entry   of   verdict. 

§  624.  The  verdict  of  a  jury  is  either  general  or 
special.  A  general  verdict  is  that  by  which  they 
pronounce  generally  upon  all  or  any  of  the  issues, 
either  in  favor  of  the  plaintiff  or  defendant;  a  spec- 
ial verdict  is  that  by  which  the  jury  find  the  facts 


§§  625,  626  TRIAL  BY  JURY.  241 

only,  leaving  the  judgment  to  the  court.  The  spec- 
ial verdict  must  present  the  conclusions  of  fact  as 
established  by  the  evidence,  and  not  the  evidence 
to  prove  them;  and  those  conclusions  of  fact  must 
be  so  presented,  as  that  nothing  shall  remain  to 
the  court  but  to  draw  from  them  conclusions  of 
law. 

Special  verdict:  Sec.  625. 

Ejectment.— Where  plaintiff's  right  terminated 
pending  action:  Sec.  740. 

Improvements,  claim  for:  Sec.  741. 

Misconduct  of  jury:  Sec.  657,  subd.  2. 

Several,  judgment  for  or  against,  some  of:  Sees. 
578,  579. 

Intendments  in  favor  of  verdict:  Sec.  53,  note; 
sec.  1963,  subd.  18. 

Amendments:  Sec.  473. 

§  625.  In  an  action  for  the  recovery  of  money 
only,  or  specific  real  property,  the  jury,  in  their 
discretion,  may  render  a  general  or  special 
verdict.  In  all  other  cases  the  court  may  direct 
the  jury  to  find  a  special  verdict  in  writing,  upon 
all,  or  any  of  the  issues,  and  in  all  cases  may  in- 
struct them,  if  they  render  a  general  verdict,  to 
find  upon  particular  questions  of  fact,  to  be  stated 
in  writing,  and  may  direct  a  written  finding  there- 
on. The  special  verdict  or  finding  must  be  filed 
with  the  clerlv  and  entered  upon  the  minutes. 
Where  a  special  finding  of  facts  is  inconsistent 
with  the  general  verdict,  the  former  controls  the 
latter,  and  the  coiu-t  must  give  judgment  accord- 
ingly. 

Submitting  special  issues  in  equity  causes:  Sec. 
592. 

§  626.  When  a  verdict  is  found  for  the  plaintifif. 
in  an  action  for  the  recovery  of  money,  or  for  the 


245  TRIAL   BY   JURY.  §§  627,  62S 

defeudaut  when  a  couuterclaim  for  the  recovery 
of  money  is  established,  exceeding  the  amount  of 
the  phiintitl's  chiim  as  established,  the  jury  must 
also  hud  the  amount  of  the  recovery. 

§  627.  In  an  action  for  the  recovery  of  specific 
personal  property,  if  the  property  has  not  been 
delivered  to  the  plaintiff,  or  the  defendant,  by  his 
answer,  claim  a  return  thereof,  the  jury,  if  their 
verdict  be  in  favor  of  the  plaintiff",  or,  if  being-  in 
favor  of  the  defendant,  they  also  find  that  he  is 
entitled  to  a  return  thereof,  must  find  the  value  of 
the  property,  and,  if  so  instructed,  the  value  of 
specific  portions  thereof,  and  may,  at  the  same 
time,  assess  the  damages,  if  any  are  claimed  in 
the  complaint  or  answer,  which  the  prevailing  par- 
ty has  sustained  by  reason  of  the  taking  or  deten- 
tion of  such  property.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  p.  311.  In 
effect  July  1,  1874.] 

Jury  must  find,  etc.:  See  post,  sec.  GG7.  and  com- 
pare with  sec.  509. 

§  628.  Upon  receiving  a  verdict,  an  entry  must 
be  made  by  the  clerk  in  the  minutes  of  the  court, 
specifying  the  time  of  trial,  the  names  of  the 
jurors  and  witnesses,  and  setting  out  the  verdict 
at  length,  and  where  a  special  verdict  is  found, 
either  the  judgment  rendered  thereon,  or  if  the 
case  be  reserved  for  argument  or  further  consid- 
eration, the  order  thus  reserving  it. 


§§  631-633  TRIAL    BY   COURT.  246 

CIIAPTEK  V. 

TRIAL   BY  THE   COURT. 

§  631.    When  and  how  trial  by  jury  may  be  waived. 

§  632.  Upon  trial  by  court,  decision  to  be  in  writing  and 
filed  within  twenty  days. 

§  633.  Facts  found  and  conclusions  of  law  must  be  sep- 
arately  stated.     Judgment   on. 

§  634.     Findings  may  be  waived,    how. 

§  335.     Findings,   how  prepared. 

§  636.    Proceedings  after  determination  of  issue   of  law. 

§  631.  Trial  by  jury  may  be  waived  by  the  sev- 
eral parties  to  an  issue  of  fact  in  actions  arising 
on  contract,  or  for  the  recovery  of  specific  real 
or  personal  property,  with  or  without  damages, 
and  with  the  assent  of  the  court  in  other  actions, 
in  manner  following: 

1.  By  failing  to  appear  at  the  trial; 

2.  By  written  consent,  in  person  or  by  attorney, 
filed  with  the  clerk; 

3.  By  oral  consent,  in  open  court,  entered  in  the 
minutes.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  311.   In  effect  July  1,  1874.] 

Waiver  of  jury  trial:  See  Const.  Cal.,  art.  1,  sec. 
7;  court  disregarding,  sees.  309,  592. 

Submitting  special  issues  to  a  jury:  See  sec.  592, 
ante. 

§  632.  Upon  the  trial  of  a  question  of  fact  by 
the  court,  its  decision  must  be  given  in  writing 
and  filed  with  the  clerlv  within  thirty  days  after 
the  cause  is  submitted  for  decision,  [Amendment 
approved  March  24,  1874;  Amendments  1873-4,  p. 
312.    In  effect  July  1,  1874.] 

§  633.  In  giving  the  decision,  the  facts  found 
and  the   conclusions  of  law  must  be  separately 


247  TRIAL  BY  COURT.,    ^    »        '    S§  634-636 

Stated.     Judgment  upon  the  decision  mus^t  be  en- 
tered accordingly. 

§  634.  Findings  of  fact  may  be  waived  by  the 
several  parties  to  an  issue  of  fact: 

1.  By  failing  to  appear  at  the  trial; 

2.  By  consent  in  writing,  filed  with  the  clerk; 

3.  By  oral  consent  in  open  court,  entered  in  the 
minutes.  r,      .^  i 

§  635.  Repealed.  [Amendments  1875-6,  p.  91. 
In  effect  April  3,  1876.] 

§  636.  On  a  judgment  for  the  plaintiff  upon  an 
issue  of  law,  he  may  proceed  in  the  manner  pre- 
scribed by  the  first  two  subdivisions  of  section  five 
hundred  and  eighty-five,  upon  the  failure  of  the 
defendant  to  answer.  If  judgment  be  for  the  de- 
fendant upon  an  issue  of  law,  and  the  taking  of  an 
account  or  the  proof  of  any  fact  be  necessary  to 
enable  the  court  to  complete  the  judgment,  a  refer- 
ence may  be  ordered  as  in  that  section  provided. 

Issue  of  law:  Sec.  589;  when  a  bar,  see  sec.  1908. 

Reference:  Sec.  638  et  seq. 

Leave  to  answer,  after  defendant's  demurrer 
overruled:  Sec.  472. 

Default,  judgment  by:  Sec.  585. 

.Judgment,  generally:  Sec.  664. 


§§  638,  039  TRIALS   BY   REFEREES.  248 

CHAPTEIl  VI. 

OF  REFERENCES  AND  TRIALS  BY  REFEREES. 

§  638.     Reference  ordered  upon  agreement  of  parties,  in  what 

cases. 
§  639.     Reference  ordered  on  motion,    in  what  cases. 
§  640.     Number   of   referees,    qualifications,    etc. 
§  641.     Either  party  may  object.     Grounds  of   objection. 
§  642.     Objections,   how  disposed  of. 
§  643.     Referees  to  report  within  ten  days.     Effect  of.     How 

excepted  to,   etc. 
§  644.    Effect  of  referees'   finding. 
§  645.    How  excepted  to,   etc. 

§  638.  A  reference  may  be  ordered  upon  the 
agreement  of  the  parties  filed  with  the  clerlv  or 
entered  in  the  minutes: 

1.  To  try  any  or  all  of  the  issues  in  an  action 
or  proceeding,  whether  of  fact  or  of  law,  and  to 
report  a  finding  and  judgment  thereon; 

2.  To  ascertain  a  fact  necessary  to  enable  the 
court  to  determine  an  action  or  proceeding. 

Reference  in  general,  court  commissioners:  Sec. 
259,  subd.  2;  fees  for,  sec.  1028;  private  trial,  sec. 
125;  compulsory,  see  next  section. 

Referees,  number,  etc.,  sec.  (MO;  objections  to, 
sees.  041,  042;  report  of,  sees.  043-45. 

Trial  by  referee:  Sec.  1053. 

§  639.  AYhen  the  parties  do  not  consent,  the 
court  may,  upon  the  application  of  either,  or  of  its 
own  motion,  direct  a  reference  in  the  following 
cases: 

1.  AVhen  the  trial  of  an  issue  of  fact  requires 
the  examination  of  a  long  account  on  either  side, 
in  which  case  the  referees  may  be  directed  to  hear 
and  decide  tlie  whole  issue,  or  report  upon  any  spe- 
cific question  of  fact  involved  therein; 

2.  When  the  taking  of  an  account  is  necessary 


249  TRIALS    BY    REFEREES.  §§  640.  641 

for  the  information  of  the  court  before  judgment, 
or  for  carrying  a  judgment  or  order  into  effect; 

3.  When  a  question  of  fact,  other  than  upon 
the  pleadings,  arises  upon  motion  or  otherwise,  in 
any  stage  of  the  action; 

4.  When  it  is  necessary  for  the  information  of 
the  court  in  a  special  proceeding. 

lieference  on  proceedings  supplementary  to  exe- 
cution: Sec.  714,  post. 

§  640.  A  reference  may  be  ordered  to  any  per- 
son or  persons,  not  exceeding  three,  agreed  upon 
by  the  parties.  If  the  parties  do  not  agree,  the 
court  or  judge  must  appoint  one  or  more  referees, 
not  exceeding  three,  who  reside  in  the  county  in 
which  the  action  or  proceeding  is  triable,  and 
against  whom  there  is  no  legal  objection,  or  the 
reference  may  be  made  to  a  court  commissioner 
of  the  county  where  the  cause  is  pending. 

Reference  ordered:  See  sees.  638,  639. 

Three  referees,  two  may  act:  Sec.  1053. 

Court  commissioner:  Sec.  259,  subd.  2. 


CA 


§  641.  Either  party  may  object  to  the  appoint- 
Yuent  of  any  person  as  referee,  on  one  or  more  of 
tlie  following  grounds: 

1.  A  want  of  any  of  the  qualifications  pre- 
scribed by  statute  to  render  a  person  competent 
as  a  juror; 

2.  Consanguinity,  or  affinity,  within  the  third 
degree,  to  either  party,  or  to  any  judge  of  the 
court,  in  which  the  appointment  shall  be  made; 

3.  Standing  in  the  relation  of  guardian  and 
wjird,  master  and  servant,  employer  and  clerk,  or 
l)rincipal  and  agent,  to  either  party;  or,  being  a 
member  of  the  family  of  either  party;  or  a  partner 
in  business  with  either  party;  or  being  security  on 
any  bond  or  obligation  for  either  party; 

4.  Having  served  as  a  juror  or  been  a  witness 


§§  642-645  TRIALS  BY  REFEREES.  250 

on  any  trial  between  the  same  parties  for  the  same 
cause  of  action; 

5.  Interest  on  the  part  of  such  person  in  the 
event  of  the  action,  or  in  the  main  question  in- 
volved in  the  action; 

G.  Having  formed  or  expressed  an  unqualified 
opinion  or  belief  as  to  the  merits  of  the  action; 

7.  The  existence  of  a  state  of  mind  in  such  per- 
son evincing  enmity  against  or  bias  to  either  party. 
[Approved  March  3,  1897;  Stats.  1897,  c.  69.] 

§  642.  The  objections  fallen  to  the  appointment 
of  any  person  as  referee  must  be  heard  and  dis- 
posed of  by  the  court.  Affidavits  may  be  read  and 
witnesses  examined  as  to  such  objections. 

Objections:  See  sec.  641. 

§  643.  The  referees  or  commissioner  must  re- 
port their  findings  in  writing  to  the  court,  within 
twenty  days  after  the  testimony  is  closed,  and  the 
facts  found  and  conclusions  of  law  must  be  sepa- 
rately stated  therein. 

Referees:  See  sees.  640-642. 

Reference:  Sees.  638,  639. 

Commissioner:  Sec.  2.59,  subd,  2. 

Referees,  where  three,  all  must  meet,  but  two 
can  act:  Sec.  1053. 

Enforcing  order:  Sec.  128,  subd.  2. 

Findings,  effect  of:  Sec.  645. 

§  644.  The  finding  of  the  referee  or  commis- 
sioner upon  the  whole  issue  must  stand  as  the  find- 
ing of  the  court,  and  upon  filing  of  the  finding  with 
the  clerlv  of  the  court,  judgment  may  be  entered 
thereon  in  the  same  manner  as  if  the  action  had 
been  tried  by  the  court. 

§  645.  The  finding  of  the  referee  or  commis- 
sioner may  be  excepted  to  and  reviewed  in  Jilie 


251  TRIALS  IN  GENERAL.  §  646 

manner  as  if  made  by  the  court.  When  the  refer- 
ence is  to  report  the  facts,  the  finding  reported  has 
the  effect  of  a  special  verdict. 

Exceptions,  generally:  Sees.  G46  et  seq.;  new 
trials,  sec.  G56  et  seq.;  court  commissioner's  report, 
time  and  mode  of  excepting  to,  sec.  259,  subd.  2. 


CHAPTER  VII. 

PROVISIONS   RELATING  TO  TRIALS  IN  GENERAL. 

Article    I.    Exceptions. 
II.     New  Trials. 

ARTICLE  I. 

EXCEPTIONS. 

§  646.    Exceptions  may  be  taken.     Time  when  taken,  etc. 

§  647.    What  deemed  excepted  to. 

§  648.    Exception,  form  of. 

§  649.     Exceptions  signed  by  judge  and  filed  with  clerk. 

§  650.     Exceptions  not  presented  at  time  of  ruling.    Notice 

to  adverse  party,  how  settled  upon,  etc. 
§  651.     Exceptions  after  judgment,   etc. 
§  652.    When   exception   is   refused,   application  to   Supreme 

Court  to  prove  the  same,  etc. 
§  653.    Proceedings  when  judge  ceases  to  hold  oflBce. 

§  646.  An  exception  is  an  objection  upon  a  mat- 
ter of  law  to  a  decision  made,  either  before  or 
after  judgment,  by  a  court,  tribunal,  judge,  or  oth- 
er judicial  officer,  in  an  action  or  proceeding.  The 
exception  must  be  talveu  at  the  time  the  decision 
is  made,  except  as  provided  in  sec.  G47.  [Amend- 
ment approved  April  3,  187G;  Amendments  1875-6, 
p.  91.     In  effect,  June  1,  1876.] 

Matters  deemed  excepted  to:  Sec.  647. 

Absence  of  party,  as  affecting:  Sec.  647. 

Amendments  to:  Sec.  650. 


8§  647-649  TRIALS    IN    GENERAL.  252 

§  647.  The  verdict  of  the  jury,  the  final  decision 
in  an  action  or  proceeding-,  an  interlocutory  order 
or  decision,  finally  determining  the  rights  of  the 
parties,  or  some  of  them ;  an  order  or  decision  from 
which  an  appeal  may  be  taken;  an  order  sustain- 
ing or  overruling  a  demurrer,  allowing  or  refus- 
ing to  allow  an  amendment  to  a  pleading,  striking 
out  a  pleading  or  a  portion  thereof,  refusing  a  con- 
tinuance; an  order  made  upon  ex  parte  applica- 
tion, and  an  order  or  decision  made  in  the  absence 
of  a  party,  are  deemed  to  have  been  excepted  to. 
[Amendment  approved  April  3,  1876;  Amendments 
1875-6,  p.  91.    In  effect  June  1,  1876.] 

§  648.  No  particular  form  of  exception  is  re- 
quired, but  when  the  exception  is  to  the  verdict  or 
decision,  upon  the  ground  of  the  insufliciency  of 
the  evidence  to  justify  it,  the  objection  must  spe- 
cify the  particulars  in  which  such  evidence  is  al- 
leged to  be  insutticient.  The  objection  must  be 
stated  with  so  much  of  the  evidence  or  other  mat- 
ter as  is  necessary  to  explain  it,  and  no  more.  Only 
tlie  substance  of  the  reporter's  notes  of  the  evi- 
dence shall  be  stated.  Documents  on  file  in  the 
action  or  proceeding  may  be  copied,  or  the  sub- 
stance thereof  stated,  or  a  reference  thereto,  suflS- 
cient  to  identify  them,  may  be  made.  [Amend- 
ment approved  April  3,  1876;  Amendments  187r>-6, 
01.    In  effect  June  1,  1876.] 

§  649.  A  bill  containing  the  exception  to  any 
decision  may  be  presented  to  the  court  or  judge  for 
settlement,  at  the  time  the  decision  is  made,  and 
after  having  been  settled,  shall  be  signed  by  tlie 
judge  and  filed  with  the  clerk.  When  the  decis- 
ion excepted  to  is  made  by  a  tribunal  other  than 
n  court,  or  by  a  judicial  officer,  the  bill  of  excep- 
tions shall  be  presented  to,  and  settled  and  signed 


'J53  TRIALS    IN    GENERAL.  §  650 

by  sueli  tribimal  or  officer.  [Ameudment  approved 
ipril  3.  1876;  Amendments  1875-6,  91.     In  effect 
./line  1,  1876.] 
Refusal  to  settle:   See  sec.  682,  infra. 

^  650.  AYlien  a  party  desires  to  have  exceptions 
taken  at  a  trial  settled  in  a  bill  of  exceptions,  lie 
may,  within  ten  days  after  the  entry  of  judgment, 
if  the  action  were  tried  with  a  jury,  or  after  re- 
ceiving notice  of  the  entry  of  judgment,  if  the  ac- 
tion were  tried  without  a  jury,  or  such  further 
time  as  the  court  in  which  the  action  is  pending, 
or  a  judge  thereof,  may  allow,  prepare  the  draft 
of  a  bill,  and  serve  the  same,  or  a  copy  thereof, 
upon  the  adverse  party.  Such  draft  must  contain 
all  the  exceptions  taken  upon  which  the  party  re- 
lies. Within  ten  days  after  such  service  the  ad- 
verse party  may  propose  amendments  thereto,  and 
serve  the  same,  or  a  copy  thereof,  upon  the  other 
party.  The  proposed  bill  and  amendments  must, 
within  ten  days  thereafter,  be  presented  by  the 
party  seeking  the  settlement  of  the  bill,  to  the 
judge  who  tried  or  heard  the  case,  upon  five  days' 
notice  t6  the  adverse  party,  or  be  delivered  to  the 
Clerk  of  the  Court  for  the  Judge.  When  received 
by  the  Clerk  he  must  immediately  deliver  them 
to  the  Judge,  if  he  be  in  the  county;  if  he  be  ab- 
sent from  the  county,  and  either  party  desire  the 
papers  to  be  forwarded  to  the  Judge,  the  Clerk 
must,  upou  notice  in  writing  of  such  party,  imme- 
diately forward  them  by  mail,  or  other  safe  chan- 
nel; if  not  thus  forwarded,  the  Clerk  must  de- 
liver them  to  the  Judge  immediately  after  his  re- 
turn to  the  county.  When  received  from  the  clerk, 
the  judge  must  designate  the  time  at  which  he 
will  settle  the  bill,  and  the  clerk  must  immedi- 
ately notify  the  parties  of  such  designation.  At 
the  time  designated,  the  judge  must  settle  the  bill. 
Co<le  Civ.  Proc— 22. 


§§  651,  652  TRIALS    IN    GENERAL.  254 

If  the  action  was  tried  before  a  referee,  the  pro- 
posed bill,  with  the  ameudmeuts,  if  any,  must  be 
presented  to  such  referee  for  settlement  within  ten 
days  after  service  of  the  amendments,  upon  notice 
of  live  days  to  adverse  party,  and  thereupon  the 
referee  shall  settle  the  bill.  If  no  amendments  are 
served,  or  if  served  are  allowed,  the  proposed  bill 
may  be  presented,  with  the  amendments,  if  any,  to 
the  judge  or  referee,  for  settlement,  without  notice 
to  the  adverse  party.  It  is  the  duty  of  the  judge 
or  referee,  in  settling  the  bill,  to  strike  out  of  it  all 
redundant  and  useless  matter  so  that  the  excep- 
tions may  be  presented  as  briefly  as  possible. 
When  settled,  the  bill  must  be  signed  by  the  judge 
or  referee,  vrith  his  certificate  to  the  effect  that 
the  same  is  allowed,  and  shall  then  be  filed  witli 
the  clerk.  [Amendment  approved  jMarch  24,  1874; 
Amendments  1873-4,  313.    In  effect  July  1,  1874.] 

Further  time:  Sec.  1054. 

New  trial,  bill  of  exceptions,  sec.  659,  subd.  2; 
requisites,  of  bill  of  exceptions,  sec.  648. 

Bills  of  exception  in  criminal  causes:  See  Pen. 
Code,  sees.  1171  et  seq. 

§  651.  Exceptions  to  any  decision  made  after 
judgment  may  be  presented  to  the  judge  at  the 
time  of  such  decision,  and  be  settled  or  noted,  as 
provided  in  see.  649,  and  a  bill  thereof  may  be 
presented  and  settled  afterward,  as  provided  in 
sec.  650,  and  within  like  periods  after  entry  of  the 
order,  upon  appeal  from  which  such  decision  is  re- 
viewable. [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  304.    In  effect  July  1,  1874.] 

§  652.  If  the  judge  in  any  case  refuse  to  allow 
an  exception  in  accordance  with  the  facts,  the 
party  desiring  the  bill  settled  may  apply  by  peti- 
tion to  the  Supreme  Court  to  prove  the  same;  the 


?55  TRIALS  IN  GENERAL.  §  653 

application  may  be  made  in  the  mode  and  manner, 
and  under  sucli  regulations  as  that  court  may  pre- 
scribe; and  the  bill,  when  proven,  must  be  cer- 
tified by  the  Chief  Justice  as  correct,  and  filed 
with  the  Clerk  of  the  Court  in  which  the  action 
was  tried,  and  when  so  filed  it  has  the  same  force 
and  effect  as  if  settled  by  the  Judge  who  tried  the 
cause. 

§  653.  When  the  decision  excepted  to  was  made 
by  any  judicial  otticer  other  than  a  judge,  the  bill 
of  exceptions  shall  be  presented  to  such  judicial 
officer  and  be  settled  and  signed  by  him,  in  the 
same  manner  as  it  is  required  to  be  presented  to, 
settled,  and  signed  by  a  court  or  judge.  A  judge 
or  judicial  officer  may  settle  and  sign  a  bill  of  ex- 
ceptions after  as  well  as  before  he  ceases  to  be 
such  judge  or  judicial  officer.  If  such  judge  or 
judicial  officer,  before  the  bill  of  exceptions  is  set- 
tled, dies,  is  removed  from  office,  becomes  disqual- 
ified, is  absent  from  the  State,  or  refuses  to  settle 
the  bill  of  exceptions,  or  if  no  mode  is  provided  by 
law  for  the  settlement  of  the  same,  it  shall  be  set- 
tled and  certified  in  such  manner  as  the  Supreme 
Court  may  by  its  order  or  rules  direct.  Judges, 
judicial  officers,  and  the  Supreme  Court  shall  re- 
spectively possess  the  same  power,  in  settling  and 
certifying  statements,  as  is  by  this  section  con- 
ferred upon  them  in  settling  and  certifying  bills 
of  exceptions.  [Amendment  approved  April  3; 
Amendments  1875-6,  93.    In  effect  June  1,  1876.] 


§§  656,  657  TRIALS    IN    GENERAL.  256 

ARTICLE   II. 

NEW   TRIALS. 

§  S56.    New  trial   defined. 

§  657.     When  a  new  trial  may  be  granted. 

§  658.     On  what  papers  moved  for. 

§  659.     Notice   of  motion,    upon   whom   served,    and   what  to 
contain. 

§  660.     Motion   to   be   heard   at   the   time   specified,    or    dis- 
missed. 

§  661.    Judge  to  make  statement  on  decision  of  the  motion. 
This  statement  to  constitute  bill  of  exceptions. 
662.     New  trial  on  court's  own  motion. 

g  663."    Repealed. 

§  656.  A  new  trial  is  a  re-examination  of  an  is- 
sue of  fact  in  tlie  same  court  after  a  trial  and  de- 
cision by  a  jury  or  court,  or  by  referees. 

§  657.  Tlie former  verdict  or  other  decision  may 
be  vacated  and  a  new  trial  granted,  on  the  appli- 
cation of  the  party  aggrieved,  for  any  of  the  fol- 
lowing causes,  materially  affecting  the  substantial 
rights  of  such  party: 

1.  Irregularity  in  the  proceedings  of  the  court, 
jury,  or  adverse  party,  or  any  order  of  the  court, 
or  abuse  of  discretion  by  which  either  party  was 
prevented  from  having  a  fair  trial; 

2.  Misconduct  of  the  jury;  and  whenever  any 
one  or  more  of  the  jurors  have  been  induced  to 
assent  to  any  general  or  special  verdict,  or  to  a 
finding  on  any  question  submitted  to  them  by  the 
court,  by  a  resort  to  the  determination  of  chance, 
such  misconduct  may  be  proved  by  the  affidavit 
of  any  one  of  the  jurors; 

.'1  Accident  or  surprise,  which  ordinary  pru- 
dence could  not  have  guarded  against; 

4.  Newly-discovered  evidence,  material  for  the 
party  making  the  application,  which  he  could  not, 


257  TRIALS    IN    GENERAL.  §§  658,  359 

with  reasonable  diligence,  have    discovered    and 
produced  at  the  trial ; 

5.  Excessive  damages  appearing  to  have  been 
given  under  the  inhuence  of  passion  or  prejudice; 

6.  Insuthciency  of  the  evidence  to  justify  the 
verdict  or  other  decision,  or  that  it  is  against  law; 

7.  Error  in  law,  occurring  at  the  trial  and  ex- 
cepted to  by  the  party  making  the  application. 

How  the  application  is  to  be  made:   Sec.  658. 
Discretion.— Court  may  grant  a  new  trial  of  its 
own  motion:    Sec.  062. 
Verdict  against  law:    Se^  sec.  662,  post. 

§  658.  When  the  application  is  made  for  a 
cause  mentioned  in  the  first,  second,  third,  and 
fourth  subdivisions  of  the  last  section,  it  must  be 
made  upon  affidavits;  for  any  other  cause  it  may 
be  made  at  the  option  of  the  moving  party,  either 
upon  the  minutes  of  the  court,  or  a  bill  of  excep- 
tions, or  a  statement  of  the  case,  prepared  as  here- 
inafter provided.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4.  314.  In  effect  July 
1,  1874.] 

Mode  of  application— affidavits,  on,  sec.  659, 
subd.  1;  minutes  of  court,  on,  sec.  659,  subd.  4; 
bill  of  exceptions,  on,  sec.  659,  subd.  2;  statement 
of  case,  on,  sec.  659,  subd.  3. 

§  659.  The  party  intending  to  move  ror  a  new 
trial  must,  within  ten  days  after  the  verdict  of 
the  jury,  if  the  action  were  tried  by  a  jury,  or 
after  notice  of  the  decision  of  the  court  or  referee, 
if  the  action  were  tried  without  a  jury,  file  with 
the  clerk  and  serve  upon  the  adverse. party  a  no- 
tice of  his  intention,  designating  the  grounds  upon 
which  the  motion  will  be  made,  and  whether  the 
same  will  be  made  upon  affidavits  or  the  minutes 
of  the  court,  or  a  bill  of  exceptions,  or  a  statement 
of  the  case: 


§  639  TRIALS    IN    GENERAL.  258 

1.  If  the  motion  is  to  be  made  upon  affidavits, 
the  moviug  party  must,  within  ten  days  after  serv- 
ing: the  notice,  or  such  further  time  as  the  court  in 
which  the  action  is  pending:,  or  a  judge  thereof, 
may  allow,  file  such  affidavits  with  the  clerli,  and 
serve  a  copy  upon  the  adverse  party,  who  shall 
have  ten  days  to  file  counter  affidavits,  a  copy  of 
which  must  be  served  upon  the  moving  party; 

2.  If  the  motion  is  to  be  made  upon  a  bill  of  ex- 
ceptions, and  no  bill  has  already  been  settled  as 
hereinbefore  provided,  the  moving  party  shall 
have  the  same  time  after  service  of  the  notice  to 
prepare  and  obtain  a  settlement  of  a  bill  of  ex- 
ceptions as  is  provided  after  the  entry  of  judg- 
ment, or  after  receiving  notice  of  such  entry  by 
section  65u,  and  the  bill  shall  be  prepared  and  set- 
tled in  a  similar  manner.  If  a  bill  of  exceptions 
has  been  already  settled  and  filed,  when  the  no- 
tice of  motion  is  given,  such  bill  shall  be  used  on 
the  motion. 

3.  If  the  motion  is  to  be  made  upon  a  statement 
of  the  case,  the  moving  party  must,  within  ten 
days  after  service  of  the  notice,  or  such  further 
time  as  the  court  in  which  the  action  is  pending, 
or  the  judge  thereof,  may  allow,  prepare  a  draft 
of  the  statement,  and  serve  the  same,  or  a  copy 
thereof,  upon  the  adverse  party.  If  such  proposed 
statement  be  not  agreed  to  by  the  adverse  party, 
he  must,  within  ten  days  thereafter,  prepare 
amendments  thereto,  and  serve  the  same,  or  a  copy 
thereof,  upon  the  moving  party.  If  the  amend- 
ments be  adopted,  the  statement  shall  be  amended 
accordingly,  and  then  presented  to  the  judge  who 
tried  or  heard  the  cause,  for  settlement,  or  be  de- 
livered to  the  Clerlv  of  the  Court  for  the  Judge.  If 
not  adopted,  the  proposed  statement  and  amend- 
ments shall,  within  ten  days  thereafter,  be  pre- 
sented by  the  moving  party  to  the  Judge,   upon 


259  TRIALS    IN    GENERAL.  §  G59 

five  days'  notice  to  the  adverse  party,  or  delivered 
to  tlie  Clerli  of  the  Court  for  the  judge;  and  there- 
upon the  same  proceedings  for  the  settlement  of 
the  statement  shall  be  taken  by  the  parties,  and 
Clerk,  and  Judge,  as  are  required  for  the  settle- 
ment of  bills  of  exception  by  section  G50.  If  the 
action  was  heard  by  a  referee,  the  same  proceed- 
ings shall  be  had  for  the  settlement  of  the  state- 
ment by  him  as  are  required  by  that  section  for 
the  settlement  of  bills  of  exception  by  a  referee.  If 
no  amendments  are  served  within  the  time  desig- 
nated, or,  if  served,  are  allowed,  the  proposed 
statement  and  amendments,  if  any,  may  be  pre- 
sented to  the  Judge  or  referee,  for  settlement, 
without  notice  to  the  adverse  party.  When  the  no- 
tice of  the  motion  designates,  as  the  ground  of 
the  motion,  the  insufficiency  of  the  evidence  to  jus- 
tify the  verdict  or  other  decision,  the  statement 
shall  specify  the  particulars  in  which  such  evi- 
dence is  alleged  to  be  insutficient.  When  the  no- 
tice designates,  as  the  ground  of  the  motion,  er- 
rors in  law  occuiTing  at  the  trial,  and  excepted  to 
by  the  moving  party,  the  statement  shall  specify 
the  particular  errors  upon  which  the  party  will 
rely.  If  no  such  specifications  be  made,  the  state- 
ment shall  be  disregarded  on  the  hearing  of  the 
motion.  It  is  the  duty  of  the  Judge  or  referee,  in 
settling  the  statement,  to  strike  out  of  it  all  re- 
dundant and  useless  matter,  and  to  make  the 
statement  truly  represent  the  case,  notwithstand- 
ing the  assent  of  the  parties  to  such  redundant  or 
useless  matter,  or  to  any  inaccurate  statement. 
When  settled,  the  statement  shall  be  signed  by  the 
Judge  or  referee,  with  his  certificate  to  the  effect 
that  the  same  is  allowed,  and  shall  then  be  filed 
with  the  clerk; 

4.    When  the   motion  is  to  be  made  upon  the 
minutes  of  the  court,  and  the  ground  of  the  mo- 


§§  660,  661  TRIALS    IN    GENERAL.  260 

tion  is  the  iiisufficiency  of  the  evidence  to  justify 
the  verdict  or  other  decision  the  notice  of  motion 
must  specify  the  particulars  in  which  the  evidence 
is  alleged  to  be  insufficient;  and,  if  the  ground  of 
the  motion  be  errors  in  law  occurring  at  the  trial, 
and  excepted  to  by  the  moving  party,  the  notice 
must  specify  the  particular  errors  upon  which  the 
party  will  rely.  If  the  notice  do  not  contain  the 
specifications  here  indicated,  when  the  motion  is 
made  on  the  minutes  of  the  court,  the  motion  must 
be  denied.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  315.    In  effect  July  1,  1874.] 

Bill  of  exceptions,  settling:  Sec.  650. 

Time,  extension  of:   Sec.  1054. 

Extension  of  time:  Sec.  1054.  Time  to  except  to 
Court  Commissioner's  report  on  matters  other  than 
issues  of  fact  raised  by  pleadings:    Sec.  259. 

Minutes  of  court,  motion  on,  statement:   Sec.  661. 

§  660.  The  application  for  a  new  trial  shall  be 
heard  at  the  earliest  practicable  period  after  notice 
of  the  motion,  if  the  motion  is  to  be  heard  upon  the 
minutes  of  the  court,  and  in  other  cases,  after  the 
affidavits,  bill  of  exceptions,  or  statement,  as  the 
case  may  be,  are  filed,  and  may  be  brought  to  a 
hearing  upon  motion  of  either  party.  On  such 
hearing  reference  may  be  had  in  all  cases  to  the 
pleadings  and  orders  of  the  court  on  file,  and  when 
the  motion  is  made  on  the  minutes,  reference  may 
also  be  had  to  any  depositions,  documentary  evi- 
dence, and  phonographic  report  of  the  testimony 
on  file.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  317.    In  effect  July  1,  1874.] 

Chambers,  motions  for  new  trials  may  be  heard 
at:    Sees.  166,  663. 

§  661.  The  judgment  roll  and  the  affidavits,  or 
bill  of  exceptions,  or  statement,  as  the  case  may 


261  TRIALS    IN    GENERAL.  §  662 

be,  used  ou  the  hearing,  with  a  copy  of  the  order 
made,  shall  constitute  the  record  to  be  used  ou  ap- 
peal from  the  order  granting  or  refusing  a  new 
trial,  unless  the  motion  be  made  on  the  minutes 
of  the  court,  and  in  that  case  the  judgment  roll 
and  a  statement  to  be  subsequently  prepared,  with 
a  copy  of  the  order,  shall  constitute  the  record  on 
appeal.  Such  subsequent  statement  shall  be  pro- 
posed by  the  party  appealing,  or  intending  to  ap- 
peal, within  ten  days  after  the  entry  of  the  order, 
or  such  further  time  as  the  court  in  which  the 
action  is  pending,  or  a  judge  thereof,  may  allow, 
and  the  same  or  a  copy  thereof  be  served  upon  the 
adverse  party,  who  shall  have  ten  days  thereafter 
to  prepare  amendments  thereto  and  serve  the  same 
or  a  copy  thereof,  upon  the  party  appealing,  oi 
intending  to  appeal;  and  thereafter  proceedings* 
shall  be  had,  and  within  like  periods,  for  the  set- 
tlement of  the  statement  as  provided  by  section 
659,  but  the  statement  shall  only  contain  the 
grounds  argTued  before  the  court  for  a  new  trial, 
and  so  much  of  the  evidence  or  other  matter  as 
may  be  necessary  to  explain  them;  and  it  shall  be 
the  duty  of  the  Judge  to  exclude  all  other  evi- 
dence or  matter  from  the  statement.  [Amend- 
ment approved  :March  24,  1874;  Amendments  1873- 
4,  318.     In  efeect  July  1,  1874.] 

Judgment  roll:   Sec.  670. 

Affidavits,  bill  of  exceptions,  statement:  Sec.  659, 
subds.  1,  2,  3. 

Minutes  of  court:   Sec.  660. 

§  662,  The  verdict  of  a  jury  may  also  be  va- 
cated, and  a  new  trial  granted  by  the  court  in 
which  the  action  is  pending,  on  its  own  motion, 
without  the  application  of  either  of  the  parties, 
when  there  has  been  such  a  plain  disregard  by  the 
jury  of  the  instructions  of  the  court,  or  the  evi- 


§§  663,  6631.^  TRIALS    IN    GENERAL.  262 

dence  in  the  case,  as  to  satisfy  the  court  that  the 
verdict  was  rendered  under  a  misapprehension  of 
such  instructions,  or  under  tlie  influence  of  pas- 
sion or  prejudice.  The  order  of  the  court  may  be 
reviewed  on  appeal  in  the  same  manner  as  orders 
made  on  motions  for  a  new  trial,  and  a  statement 
to  be  used  on  such  appeal  may  be  prepared  in  the 
same  manner  as  statements  after  a  motion  is 
heard  upon  the  minutes  of  the  court,  as  provided 
in  section  G61.  [New  section  approved  March  24, 
1874;  Amendments  1873-4,  318.  In  eifect  July  1, 
1874.] 

§  663.  A  judgment  or  decree  of  a  Superior 
Court,  when  based  upon  findings  of  fact  made  by 
the  court,  or  the  special  verdict  of  a  jury,  may, 
upon  motion  of  the  party  aggrieved,  be  set  aside 
and  vacated  by  the  same  court,  and  another  and 
different  judgment  entered,  for  either  of  the  fol- 
lowing causes,  materially  affecting  the  substantial 
rights  of  such  party  and  entitling  him  to  a  differ- 
ent judgment: 

1.  Incorrect  or  erroneous  conclusions  of  law  not 
consistent  with  or  not  supported  by  the  findings 
of  fact;  and  in  such  case  when  the  judgment  is 
set  aside  the  conclusions  of  law  shall  be  amended 
and  corrected; 

2.  A  judgment  or  decree  not  consistent  with  or 
not  supported  by  the  special  verdict.  [New  sec- 
tion approved  March  3,  1897;  Stats.  1897,  c.  67.  In 
effect  immediately.] 

There  had  previously  been  another  section  663, 
which  was  repealed  in  1880;  Amendments  1880,  64. 

§  663V:2.  The  pnrty  intending  to  malve  the  mo- 
tion mentioned  in  the  last  section  must,  within 
ten  days  after  notice  of  the  rendition  of  judg- 
ment or  decree,  serve  upon  the  adverse  party  and 
file  with  the  clerk  of  the  court  a  notice  of  his  in- 


V 


263  GIVING  AND   ENTERING   JUDGMENT.  §  634 

tention,  designating  the  grounds  upon  which  the 
motion  will  be  made,  and  specifying  the  particu- 
lars in  which  the  conclusions  of  law  are  not  con- 
sistent with  the  tinding  of  facts,  or  in  which  the 
judgment  or  decree  is  not  consistent  with  the  spe- 
cial verdict.  The  said  party  must,  within  sixty 
days  after  giving  such  notice  of  intention,  make 
the  motion  to  the  court,  after  giving  due  notice  of 
the  time  of  maldng  such  motion  to  the  adverse 
party;  but  the  hearing  or  consideration  of  such  mo- 
tion may  be  further  continued  by  the  court.  [New 
section  approved  March  3,  1897;  Stats.  1897,  c.  67.] 


CHAPTER  VIII. 

THE  MANNER  OF  GIVING  AND  ENTERING  JUDGMENT. 

§  634.  Judgment  to  be  entered  in  twenty-four  hours,  etc. 
§  665.  Case  may  be  brought  before  the  court  for  argument. 
§  666.    When    counter-claim    established    exceeds    plaintiff's 

demand. 
§  667.    In  replevin,   judgment  to  be  in  the  alternative,   and 

with  damages.    Gold  coin  or  currency  judgment. 
§  66S.    Judgment  book  to  be  kept  by  the  clerk. 
§  669.    If  a  party  die  after  verdict,  judgment  may  be  entered, 

but  not  to  be  a  lien. 
§  670.    Judgment  roll,  what  to  constitute. 
§  671.    Judgment  lien,  when  it  begins  and  when  it  expires. 
§  672.     Docket,  how  kept,  and  what  to  contain. 
§  673.     Docket  to  be  open  for  inspection  without  charge. 
§  674.    Transcript  to  be  filed  in  any  county,   and  judgment 

to  become  a  lien  there. 
S  675.     Satisfaction  of  a  judgment,   how  made. 

§  664.  When  trial  by  jury  has  been  had,  judg- 
ment must  be  entered  by  the  Clerk,  in  conformity 
to  the  verdict,  within  twenty-four  hours  after  the 
rendition  of  the  verdict,  unless  the  court  order  the 
case  to  be  reserved  for  argument  or  further  con- 
sideration, or  grant  a  stay  of  proceedings. 

Reserving,  for  argument  or  further  considera- 
ilon:   Sec.  065. 


§  664         GIVING      AND   ENTERING   JUDGMENT.  264 

Stay  of  proceedings,  by  appeal:    Sec.  949. 

Abbreviations  and  numerals:    Sec.  186. 

Administrator,  judgment  against:    Sec.  1504. 

Appeal  from  judgment:    Sec.  930. 

Arrest  of  defendant:    Sec.  G84. 

Attachment.— If  plaintiff  bold,  Sheriff  must  sat- 
isfy out  of  proceeds:    Sec.  550. 

Award,  judgment  on:   Sec.  1286. 

Compelling  obedience  to  judgments:  Sees.  128, 
subd.  4;  1209  et  seq. 

Compromise,  judgment  after  oft'er  to:    Sec.  997. 

Counter-claim,  judgment  on:    Sec.  666. 

Courts  are  always  open  for  the  entry  of  judg- 
ment:  Sec.  73. 

Currency, -etc.:    Sec.  667. 

Death  of  party:  See  sec.  669,  post.  See  sec.  1589, 
post,  as  to  suits  by  the  representatives  to  set  aside 
fraudulent  deeds. 

Default,  judgment  by:   Sec.  585. 

Demurrer,  judgment  on:    Sec.  636. 

Dismissal:    Sec.  581. 

Estoppel:    Sec.  1908. 

Executor,  judgment  against:    Sec.  1504. 

Further  consideration:    Sec.  665. 

Gold  coin,  etc.:   Sec.  667- 

Intervention,  judgmenc  after:   Sec.  387. 

Language,  proceedings  to  be  in  English:  Sec. 
185. 

Married  woman:    Sees.  370,  371. 

Mechanics'  liens:   Sec.  1194. 

Mistalves  and  amendments:    Sec.  473. 

Money  of  account.— The  money  of  account  of 
this  State  is  the  dollar,  cent,  and  mill.  Public  ac- 
counts, and  all  proceedings  in  courts,  must  be  kept 
and  had  in  conformity  to  this  regulation:  Polit. 
Code,  sec.  3272.  The  provisions  of  the  preceding 
section  do  not  vitiate  or  affect  any  account,  charge, 
or  entry,  originally  made,  or  any  note,  bond,  or 


i 


265       GIVING   AND    ENTERING    JUDGMENT.        §§  665-667 

other  iustrimient,  expressed  iu  any  other  money  of 
account,  but  the  same  must  be  reduced  to  dol- 
lars, or  parts  of  dollars  in  any  suit  thereupon: 
Polit.  Code,  sec.  3273.  In  judgments  and  execu- 
tions, the  amount  thereof  must  be  computed  and 
stated,  as  near  as  may  be,  in  dollars  and  cents, 
rejecting  fractions:    Polit.  Code,  sec.  3274. 

Money,  liiud  of,  specified:    Sec.  GG7. 

Nonsuit:    Sec.  581. 

Parties:  Sec.  3G7.  Judgment  against  one  or  more 
of  .several:    Sees.  578,  579.    Death  of  party:    Sees. 

385,  ma. 

Partition:    Sec.  7(36. 

Receiver  to  carry  judgment  into  effect,  and  pre- 
serve property  during  pendency  of  appeal,  etc.: 
Sec.  564. 

Relief:    Sec.  580. 

Remittitur:    Sec.  958. 

§  665.  When  the  case  is  reserved  for  argu- 
ment or  further  consideration,  as  mentioned  in  the 
last  section,  it  may  be  brought  by  either  party 
before  the  court  for  argument. 

§  666.  If  a  counter-claim,  established  at  the 
trial,  exceed  the  plaintiff's  demand,  judgment  for 
the  defendant  must  be  given  for  the  excess;  or  if 
it  appear  that  the  defendant  is  entitled  to  any 
other  attirmative  relief,  judgment  must  be  given 
accordingly. 

Counter-claim,  generally:  Sees.  438,  439;  dismis- 
sal or  nonsuit,  where  none,  sec.  581,  subd.  1.  Ex- 
ceeding plaintiff's  demand:  Sec.  626.  Affirmative 
relief:    See  sec.  447. 

S  667.  In  an  action  to  recover  the  possession  of 
personal  property,  judgment  for  the  plaintiff'  may 
be  for  the  possession  or  the  value  thereof,  in  case 

Code  Civ.  Proc— 23. 


§  66S  GIVING    AND    ENTERING    JUDGMENT.  266 

a  delivery  cannot  be  bad,  and  damages  for  the 
detention.  If  the  property  has  been  delivered  to 
the  plaintiff,  and  tlie  defendant  claim  a  return 
thereof,  judgment  for  the  defendant  may  be  for  a 
return  of  the  property  or  the  value  thereof,  in  case 
a  return  cannot  be  had,  and  damages  for  taking 
and  withholding  the  same.  In  an  action  on  a  con- 
tract or  obligation  in  writing,  for  the  direct  pay- 
ment of  money,  made  payable  in  a  specified  kind 
of  money  or  currency,  judgment  for  the  plaintiff, 
Avhether  it  be  by  default  or  after  verdict,  may  fol- 
low the  contract  or  obligation,  and  be  made  pay- 
able in  the  kind  of  money  or  currency  specified 
therein;  and  in  all  actions  for  the  recovery  of 
money,  if  the  plaintiff  allege  in  his  complaint  that 
the  same  was  understood  and  agreed  by  the  re- 
spective parties  to  be  payable  in  a  specified  kind 
of  money  or  currency,  and  this  fact  is  admitted  by 
the  default  of  the  defendant  or  established  by  evi- 
dence, the  judgment  for  the  plaintiff  must  be  made 
payable  in  the  kind  of  money  or  currency  so  al- 
leged in  the  complaint;  and  in  an  action  against 
any  person  for  the  recovery  of  money  received  by 
such  person  in  a  fiduciary  capacity,  or  to  the  use 
of  another,  judgment  for  the  plaintiff  must  be 
made  payable  in  the  kind  of  money  or  currency  so 
received  by  such  person. 

See  sec.  664. 

Eeplevin  judgment — verdict:  Sec.  627;  value,  cor- 
recting affidavit  of:    Sec.  473. 

Evidence:    Sec.  1963,  subd.  20. 

Execution:   Sec.  682,  subd.  4. 

Replevin,  return  to  defendant:  See  also  sec.  509, 
ante,  and  sec.  627. 

Trust  funds— Fiduciary  capacity:    Sec.  1407. 

§  668.    The  clerk  must  keep,  with  the  records  of 


267  GIVING  AND  ENTERING  JUDGMENT.   §§  669,  G70 

the  court,  a  book  to  be  called  the  "judgment  book," 
in  which  judgments  must  be  entered. 
Register  of  actions:    Sec.  1052. 

§  669.  If  a  party  die  after  a  verdict  or  decision 
upon  any  issue  of  fact,  and  before  judgment,  the 
court  may  nevertheless  render  judgment  thereon. 
Such  judgment  is  not  a  lien  on  the  real  property  of 
the  deceased  party,  but  is  payable  in  the  course 
of  administration  on  his  estate. 

Payable  in  course  of  administration:  Sec.  150U. 
and  see  sec.  1504. 

Death,  suggestion  of:   Sec.  385. 

Executor,  etc..  judgment  against,  form  of:  Sec. 
1504. 

§  670.  Immediately  after  entering  the  judg- 
ment, the  clerk  must  attach  together  and  file  the 
following  papers,  which  constitute  the  judgment- 
roll: 

1.  In  ease  the  complaint  be  not  answered  by 
any  defendant,  the  summons,  with  the  affidavit  or 
proof  of  service;  tlie  complaint  with  a  memoran- 
dum indorsed  thereon  that  the  default  of  the  de- 
fendant is  not  answering  was  entered,  and  a  copy 
of  the  judgment;  and  in  case  where  the  service  so 
made  be  by  publication,  the  affidavit  for  publica- 
tion of  summons,  and  the  order  directing  the  pub- 
lication of  summons,  must  also  be  included; 

2.  In  all  other  cases,  the  pleadings,  a  copy  of 
the  verdict  of  the  jury,  or  finding  of  the  court,  or 
referee,  all  bills  of  exceptions  taken  and  filed,  and 
a  copy  of  any  order  made  on  demurrer,  or  relating 
to  the  change  of  parties,  and  a  copy  of  the  judg- 
ment; if  there  are  two  or  more  defendants  in  the 
action,  and  any  one  of  them  has  allowed  judg- 
ment to  pass  against  him  by  default,  the  summons, 
with  proof  of  its  service  on  such  defendant,  must 


I  371  GIVING   AND    ENTERING   JUDGMENT.  268 

also  be  added  to  the  other  papers  mentioned  in 
this  subdivision;  and  if  the  service  on  such  de- 
faulting defendant  be  by  publication,  then  the  affi- 
davit for  publication,  and  the  order  directing  the 
publication  of  the  summons  in  such  cases  must 
also  be  included.  [Amendment  approved  March 
12,  1895;  Stats.  1S95,  45.    In  effect  in  sixty  days.] 

Judgment-roll  in  criminal  cases:  See  Pen.  Code, 
sec.  1207. 

Clerk's  powers  and  duties,  county  clerk:  See 
Polit.  Code,  sees.  4204,  4205;  deputies:  See  Folit. 
Code,  sees.  805,  4112-4114;  functions  generally,  see 
sec.  585.  subds.  1  and  2,  593,  (iH4,  608,  071-3,  1051, 
1052.  2012. 

Judgment,  by  default:    Sec.  585. 

§  671.  Immediately  after  tiling  the  judgment- 
roll,  the  Clerk  must  make  the  proper  entries  of 
the  judgment,  under  appropriate  heads,  in  the 
docket  kept  by  him;  and  from  the  time  the  judg- 
ment is  docketed  it  becomes  a  lien  upon  all  the 
real  property  of  the  judgment  debtor  not  exempt 
from  execution  in  the  county,  OAvned  by  him  at 
the  time,  or  v^'hich  he  may  afterwards  acquire,  un- 
til the  lien  ceases.  The  lien  continues  for  five 
years,  unless  the  enforcement  of  the  judgment  be 
stayed  on  appeal  by  the  execution  of  a  sufficient 
undertaking  as  provided  in  this  Code,  in  which 
case  the  lien  of  the  judgment  and  any  lien  by  vir- 
tue of  an  attachment  that  has  been  issued  and 
levied  in  the  action  ceases.  [Amendment  ap- 
proved March  9,  1895;  Stats.  1895,  30.  In  effect 
:March  9,  1895.] 

Judgment  docket:    See  sees.  072-G74. 

Kecording  transcript  of  docket  in  another  coun- 
ty:   Sec.  074. 

Judgment  after  decedent's  death,  on  verdict,  etc., 
before:    Sec.  150(;. 

Undertaking  on  appeal:    Sees.  941  et  seq. 


2<59  GIVING  AND   ENTERING   JUDGMENT.   §§  672-674 

§  672.  The  docket  mentioned  in  the  last  section 
is  a  book  which  the  Clerk  keeps  in  his  oftice,  with 
each  pa.ee  divided  into  eiffht  columns,  and  headed 
as  follows:  Judgment  debtors;  judgment  creditors; 
judgment;  time  of  entry;  where  entered  in  judg- 
ment book;  appeals,  when  taken;  judgment  of  ap- 
pellate court;  satisfaction  of  judgment,  when  en- 
tered. If  judgment  be  for  the  recovery  of  money 
or  damages,  the  amount  must  be  stated  in  the 
docket  under  the  head  of  judgment;  if  the  judg- 
ment be  for  any  other  relief,  a  memorandum  of 
the  general  character  of  the  relief  granted  must 
be  stated.  The  names  of  the  defendants  must  be 
entered  in  alphabetical  order. 

Docketing  judgment:    Sec.  071. 

Duty  of  Clerk  to  keep  docket:  Polit.  Code,  sec, 
4204,  subd.  3. 

§  673.  The  docket  kept  by  the  Clerk  is  open  at 
all  times,  during  office  hours,  for  the  inspection  of 
the  public,  without  charge.  The  Clerk  must  ar- 
range the  several  dockets  kept  by  him  in  such  a 
manner  as  to  facilitate  their  inspection. 

Public  writings,  open  to  inspection:  Sees.  1892, 
1893. 

§  674.  A  transcript  of  the  original  docket,  cer- 
tified by  the  Clerk,  may  be  tiled  with  the  Ilecord- 
er  of  any  other  county,  and  from  the  time  of  the 
filing  the  judgment  becomes  a  lien  upon  all  the 
real  property  of  the  judgment  debtor,  not  exempt 
from  exectition,  in  such  cotinty,  owned  by  him  at 
the  time,  or  which  he  may  afterward,  and  before 
the  lien  expires  acquire.  The  lien  continues  for 
two  years,  imless  the  judgment  be  previously  sat- 
isfied. 

Another  county,  filing  transcript  in:  Civ.  Code, 
sec.  1159;  where  land  situated:  Sec.  400,  ante;  but 
see  sec.  78. 


§  675  GIVING  AND  ENTERING  JUDGMENT.  270 

Recording  generally:   Sees.  1165,  1169,  1170. 
Justice's  Court  judgment,  abstract  creates  lien: 
Sec.  900. 

§  675.  Satisfaction  of  a  judgment  may  be  en- 
tered in  the  Clerli's  docl^et  upon  an  execution  re- 
turned satisfied,  or  upon  an  acknowledgment  of 
satisfaction  filed  witli  the  Clerk,  made  in  the  man- 
ner of  an  acknowledgment  of  a  conveyance  of  real 
property,  by  the  judgment  creditor,  or  by  his  in- 
dorsement on  the  face,  or  on  the  margin  of  the 
record  of  the  judgment,  or  by  the  attorney,  un- 
less a  revocation  of  his  authority  is  filed.  When- 
ever a  judgment  is  satisfied  in  fact,  otherwise  than 
upon  an  execution,  the  party  or  attorney  must  give 
such  acliuowledgment,  or  make  such  indorsement, 
and  upon  motion  the  court  may  compel  it,  or  may 
order  the  entry  of  satisfaction  to  be  made  with- 
out it.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  675.    In  effect  July  1,  1874.] 

Acknowledgments.— Justices  of  the  Supreme 
Court,  Judges  of  district  and  county  courts.  Jus- 
tices of  the  peace,  police  judges,  and  judges  of 
municipal  courts,  have  power  within  certain  limits 
to  take  and  certify  acknoAvledgments  of  satisfac- 
tion of  judgments:    Sec.  179. 

Attorney,  power  to  bind  client:    Sees.  283-285. 


TITLE   IX. 

ON  THE  EXECUTION  OF    THE   JUDGMENT    IN  CIVIL  AC- 
TIONS. 

Chapter  I.    The  execution. 

II.    Proceediugs  supplemental  to  the  exe- 
cution, 

CHAPTER   I. 

THE    EXECUTION. 

§  6S1.    Within  what  time  execution  may  issue. 

§  382.  Who  may  issue  the  execution,  its  form,  to  whom  di- 
rected, and  what  it  shall  require. 

§  683.     When    made    returnable. 

§  G84.     Money  judgments,  and  others,  how  enforced. 

§  685.    Execution    after   five   years. 

§  686.  When  execution  may  issue  against  the  property  of  a 
party  after  his  death. 

§  687.    Execution,   how  and  to  whom   issued. 

§  688.  What  shall  be  liable  to  be  seized  in  execution.  Not 
to  be  affected  till  a  levy  is  made. 

§  689.  When  property  is  claimed  by  a  third  party,  how  the 
right    of   property    is    tried. 

§  690.    What  exempt  from  execution. 

§  691.     writ,   how  executed. 

§  392.     Notice  of  sale  under  execution,  how  given. 

§  693.     Selling  without  notice,  what  penalty  attached. 

§  694.  Sales,  how  conducted.  Neither  the  officer  conduct- 
ing it  nor  his  deputy  to  be  a  purchaser.  Real 
and  personal  property,  how  sold.  Judgment  debt- 
or, if  present,  may  direct  order  of  sale,  and  the 
ofiicer  shall  follow  his  directions. 

§  695.  If  purchaser  refuses  to  pay  purchase-money,  what 
proceedings. 

§  696.  Court  of  justice  may  proceed  in  a  summary  man- 
ner against  a  purchaser  refusing  to  pay.  Officer 
may   refuse   such   purchaser's  bid   after. 

§  697.  These  two  sections  not  to  make  officer  liable  be- 
yond a  certain  amount. 

§  698.  Personal  property,  not  capable  of  manual  delivery, 
how  delivered  to  purchaser. 


§  681  THE    EXECUTION.  272 

§  699.  Personal  property  not  capable  of  manual  delivery, 
how  sold  and  delivered. 

§  700.  Real  property,  when  absolute  sale  or  not.  In  the 
latter  case,  what  the  certificate  must  contain. 

§  701.  Real  property  so  sold,  by  whom  it  may  be  re- 
deemed. 

§  702.    When  it  may  be  redeemed,  and  redemption  money. 

§  703.  When  judgment  debtor  or  other  redemptioner  may 
redeem. 

§  704.  In  cases  of  redemption,  to  whom  the  judgments  are 
to  be  made. 

§  705.     What  a  redemptioner  must  do  in  order  to  redeem. 

§  706.  Until  the  expiration  of  redemption  time  court  may  re- 
strain waste  on  the  property.  What  considered 
waste. 

§  707.     Rents  and  profits. 

§  708.  If  purchaser  of  real  property  be  evicted  for  irregu- 
larities in  sales,  what  he  may  recover  and  from 
whom.  When  judgment  to  be  revived.  Petition 
for   the   purpose,    how   and   by  whom   made. 

§  709.  Party  who  pays  more  than  his  share  may  compel 
contribution. 

§  681.  The  party  in  Avliose  lavor  judgment  is 
given,  may,  at  any  time  within  five  years  after 
the  entry  thereof,  have  a  Avrit  of  execution  issued 
for  its  enforcement. 

Time  for  execution:  Sec.  004;  when  extended: 
Sec.  685. 

Appeal,  stay  of  execution:    Sees.  942-945. 

Arrest  on  mesne  process:  Sec.  478.  Where  money 
deposited  by  defendant,  judgment  is  to  be  satis- 
fied thereon  by  Clerk:    Sec.  500. 

Attachment.— If  judgment  plaintiff  has  attached 
property,  the  Sheriff  must  satisfy  the  judgment 
out  of  it:    Sec.  550. 

Executor  or  administrator.— No  execution  must 
issue  upon  j\idgment  against,  upon  claims  for 
money  due  from  estate:    Sec.  1504. 

Receiver,  in  proceedings  in  aid  of  execution:  Sec. 
5(54,  subd.  4. 

Vessels,  execution  on  judgment  against:  Sec. 
S25. 


273  THE   EXECUTION.  §  682 

§  682.  The  writ  of  execution  must  be  issued  in 
the  name  of  the  people,  sealed  with  the  seal  of 
the  court,  and  subscribed  by  the  Clerk,  and  be 
directed  to  the  Sheriff,  and  it  must  intelligibly  re- 
fer to  the  judgment,  stating  the  court,  the  county 
wliere  the  judgment-roll  is  filed,  and  if  it  be  for 
money,  the  amount  thereof,  and  the  amount  actu- 
ally due  thereon,  and  if  made  payable  in  a  speci- 
fied Ivind  of  money  or  currency,  as  provided  in  sec- 
tion six  hundred  and  sixty-seven,  the  execution 
must  also  state  the  kind  of  money  or  currency  in 
Avhich  the  judgment  is  payable,  and  must  re- 
quire the  Sheriff  substantially  as  folloAvs: 

1.  If  it  be  against  the  property  of  the  judgment 
debtor,  it  must  require  the  Sheriff  to  satisfy  the 
judgment,  with  interest,  out  of  the  personal 
property  of  such  debtor,  and  if  sufficient  per- 
sonal property  cannot  be  found,  then  out  of  his 
real  property;  or  if  the  judgment  be  a  lieu  upon 
real  property,  then  out  of  the  real  property  be- 
longing to  him  on  the  day  when  the  judgment  was 
docketed,  or  at  any  time  thereafter;  or  if  the  exe- 
cution be  issued  to  a  county  other  than  the  one  in 
which  the  judgment  was  recovered,  on  the  day 
when  the  transcript  of  the  docket  was  filed  in  the 
office  of  the  Recorder  of  such  county,  stating  such 
day,  or  any  time  thereafter; 

2.  If  it  be  against  real  or  personal  property  in 
the  hands  of  the  personal  representatives,  heirs, 
devisees,  legatees,  tenants,  or  trustees,  it  must  re- 
quire the  Sheriff  to  satisfy  the  judgment,  with  in- 
terest, out  of  such  property; 

3.  If  it  be  against  the  person  of  the  judgment 
debtor,  it  must  require  the  Sheriff  to  arrest  such 
debtor  and  commit  him  to  the  jail  of  the  county 
until  he  pay  the  judgment  with  interest,  or  be  dis- 
charged according  to  law; 

4.  If  it  be  issued  on  a  judgment  made  payable 


§  6S3  THE  EXECUTION.  274 

in  a  specified  Ivind  of  money  or  currency,  as  pro- 
vided in  section  six  hundred  and  sixty-seven,  it 
must  also  require  tlie  Slieritf  to  satisfy  the  same 
in  the  kind  of  money  or  currency  in  which  the 
judgment  is  made  payable,  and  the  Sheriff  must 
refuse  payment  in  any  other  kind  of  money  or 
currency;  and  in  case  of  levy  and  sale  of  the  prop- 
erty'of  the  judgment  debtor,  he  must  refuse  pay- 
ment from  any  purchaser  at  such  sale  in  any  other 
kind  of  money  or  currencj^  than  that  specified  in 
the  execution.  The  Sheriff,  collecting  money  or 
currency  in  the  manner  required  by  this  chapter, 
must  pay  to  the  plaintiff  or  party  entitled  to  re- 
cover the  same,  the  same  kind  of  money  or  cur- 
rency received  by  him,  and  in  case  of  neglect  or 
refusal  so  to  do,  he  shall  be  liable  on  his  ofl3cial 
bond  to  the  judgment  creditor  in  three  times  the 
amount  of  the  money  so  collected. 

5.  If  it  be  for  the  delivery  of  the  possession  of 
real  or  personal  property,  it  must  require  the  Sher- 
iff to  deliver  the  possession  of  the  same,  describ- 
ing it,  to  the  party  entitled  thereto,  and  may,  at 
the  same  time,  require  the  Sheriff  to  satisfy  any 
costs,  damages,  rents,  or  profits,  recovered  by  the 
same  judgment,  out  of  the  personal  property  of 
the  person  against  whom  it  was  rendered,  and  the 
value  of  the  property  for  which  the  judgment  was 
rendered  to  be  specified  therein  if  a  delivery  there- 
of cannot  be  had;  and  if  sufficient  personal  prop- 
erty cannot  be  found,  then  out  of  the  real  prop- 
erty, as  provided  in  the  first  subdivision  of  this 
section. 

Contempt:   Sees.  1209,  1210. 

Subd.  4.  Judgment  payable  in  specified  kind  of 
money:    See,  ante,  sec.  667. 

§  683.  The  execution  may  be  made  returnable, 
at  any  time  not  less  than  ten  nor  more  than  sixty 


275  THE  EXECUTION.  §  684 

days  after  its  receipt  by  the  Sheriff,  to  the  Clerk 
with  whom  the  judgment-roll  is  filed.  When  the 
execution  is  returned  the  Clerk  must  attach  it  to 
the  judgment-roll.  If  any  real  estate  be  levied 
upon,  the  Clerk  must  record  the  execution  and  the 
return  thereto  at  large,  and  certify  the  same  under 
his  hand  as  true  copies,  in  a  book  to  be  called  the 
"execution  book,"  which  book  must  be  indexed 
with  the  names  of  tlie  plaintiffs  and  defendants  in 
execution,  alphabetically  arranged,  and  kept  open 
at  all  times  during  office  hours  for  the  inspection 
of  the  public  without  charge.  It  is  evidence  of  the 
contents  of  the  originals  whenever  they  or  any 
part  thereof  may  be  destroyed  or  mutilated. 

§  684.  When  the  judgment  is  for  money  or  the 
possession  of  real  or  personal  property,  the  same 
may  be  enforced  by  a  writ  of  execution;  and  if 
the  judgment  direct  that  the  defendant  be  arrest- 
ed, the  execution  may  issue  against  the  person  of 
the  judgment  debtor,  after  the  return  of  an  execu- 
tion against  his  property  unsatisfied  in  whole  or 
part.  When  the  judgment  requires  the  sale  of 
property,  the  same  may  be  enforced  by  a  writ  re- 
citing such  judgment  or  the  material  parts  there- 
of, and  directing  the  proper  officer  to  execute  the 
judgment,  by  making  the  sale  and  applying  the 
proceeds  in  conformity  therewith.  When  the  judg- 
ment requires  the  performance  of  any  other  act 
than  as  above  designated,  a  certified  copy  of  the 
judgment  may  he  served  upon  the  party  against 
whom  the  same  is  rendered,  or  upon  the  person  or 
officer  required  thereby  or  by  law  to  obey  the 
same,  and  obedience  thereto  may  be  enforced  by 
the  court.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  321.    In  effect  July  1,  1874.] 

Writ  of  possession  or  restitution:  Sees.  880,  1174. 


S§  685-687  THE   EXECUTION.  276 

Execution  against  the  person;  discbarge  of  pris- 
oner:   Sees.  1143-1154. 

Sale  of  property:   See  sec,  694  et  seq. 

Performance  of  any  other  act — Enforcing  obedi- 
ence:  Sec.  1209  et  seq. 

§  685.  In  all  cases,  the  judgment  may  be  en- 
forced or  carried  into  execution  after  the  lapse  of 
five  years  from  the  date  of  its  entry,  by  leave  of 
the  court,  upon  motion,  or  by  judgment  for  that 
purpose,  founded  upon  supplemental  pleadings; 
but  nothing  in  this  section  shall  be  construed  to 
revive  a  judgment  for  the  recovery  of  money 
which  shall  have  been  barred  by  limitation  at  the 
time  of  the  passage  of  this  act.  [Amendment  ap- 
proved March  9,  1895;  Stats.  1895,  38.  In  effect 
March  9,  1895.] 

§  686.  Notwithstanding  the  death  of  a  party 
after  the  judgment,  execution  thereon  may  be  is- 
sued, or  it  may  be  enforced  as  follows: 

1.  In  case  of  the  death  of  the  judgment  creditor, 
upon  the  application  of  his  executor,  or  adminis- 
trator,  or  successor  in  interest; 

2.  In  case  of  the  death  of  the  judgment  debtor, 
if  the  judgment  be  for  the  recovery  of  real  or 
personal  property,  or  the  enforcement  of  a  lien 
tliereon. 

Death  of  party— effect  on  action:  Sec.  385;  judg- 
ment after:   Sec.  609;  execution  after:    Sec.  1505. 

Keal  or  personal  property,  recovery  of:  See  sec. 
682,  subd.  5. 

§  687.  Where  the  execution  is  against  the  prop- 
erty of  the  judgment  debtor,  it  may  be  issued  to 
the  Sheriff  of  any  county  in  the  State.  Where  it 
riMiuires  the  delivery  of  real  or  personal  property, 
it    must   be   issued   to   the    Sheriff   of   the   county 


277  ,  THE   EXECUTION.  §§  688,  689 

where  the  property,  or  some  part  thereof,  is  sit- 
uated. Executions  maj'  be  issued,  at  the  same 
time,  to  different  counties. 

Any  county, in  the  State,  process  extends  to:  Sec. 
78. 

Act  concerning  execution  of  final  process  where 
new  county  formed:  See  post,  Appendix,  p.  864. 

H-  §  688.  All  goods,  chattels,  moneys,  and  other 
'^(.property,  both  real  and  personal,  or  any  interest 
therein  of  the  judgment  debtor,  not  exempt  by 
law,  and  all  property  and  rights  of  property  seized 
and  held  under  attachment  in  the  action,  are  lia- 
ble to  execution.  Shares  and  interests  in  any  cor- 
poration or  company,  and  debts  and  credits,  and 
all  other  property,  both  real  and  personal,  or  any 
interest  in  either  real  or  personal  property,  and  all 
other  property  not  capable  of  manual  delivery, 
may  be  attached  on  execution,  in  lilve  manner  as 
upon  writs  of  attachment.  Gold  dust  must  be  re- 
turned by  the  officer  as  so  much  money  collected 
at  its  current  value,  without  exposing  the  same  to 
sale.  Until  a  lev)%  property  is  not  affected  by  the 
execution. 

Good  will:  Civ.  Code,  sees.  992,  993;  franchise, 
Civ.  Code,  sees.  388-393. 

Homestead:  See  Civ.  Code,  sec.  1241-1261;  and 
as  to  sole  traders,  see  sees.  1811-1822. 

LevA^:    See  sec.  542. 


L 


§  689.  If  the  property  levied  on  be  claimed  by 
a  third  person  as  his  property  by  a  written  claim 
verified  by  the  oath  of  said  claimant,  setting  out 
his  title  thereto,  his  right  to  the  possession  thereof, 
and  stating  the  grounds  of  such  title,  and  served 
upon  the  Slieriff,  the  Slieriff  is  not  bound  to  keep 
tlie  property  unless  the  plaintiff,  or  the  person  in 
whose  favor  tlie  writ  of  execution  runs,  on  de- 
code  Civ.   Proc— 24. 


§  690  THE    EXECUTION.  -  278 

luand,  indemnify  tlie  Sheritf  against  siicli  claim 
by  an  undertaking  by  at  least  two  good  and  suffi- 
cient sureties;  and  no  claim  to  such  property  is 
valid  against  the  Sheriff,  or  shall  be  received,  or 
be  notice  of  any  rights,  unless  made  as  above  pro- 
vided. [Amendment  approved  March  2,  1891; 
Stats.  1891,  20.]. 

If  the  Sheriff  give  notice  to  sureties  of  action 
brought  against  him,  they  are  liable  on  the  judg- 
ment:  Sec.  1055. 

§  690.  The  following  property  is  exempt  from 
execution,  except  as  herein  otherwise  specially 
provided: 

1.  Chairs,  tables,  desks,  and  books,  to  the  value 
of  two  hundred  dollars,  belonging  to  the  judgment 
debtor. 

2.  Necessary  household,  table,  and  kitchen  fur- 
niture belonging  to  the  judgment  debtor,  including 
one  sewing  machine,  stove,  stovepipes  and  furni- 
ture, wearing  apparel,  beds,  bedding,  and  bed- 
steads, hanging  pictures,  oil  paintings  and  draw- 
ings, drawn  or  painted  by  any  member  of  the 
family,  and  family  portraits  and  their  necessary 
frames,  provisions  actually  provided  for  individ- 
ual or  family  use,  sufficient  for  three  months,  and 
three  cows  and  their  sucking  calves,  four  hogs 
with  their  sucking  pigs,  and  food  for  such  cows 
and  hogs  for  one  month;  also,  one  piano,  one  shot- 
gun, and  one  rifle; 

3.  The  farming  utensils  or  implements  of  hus- 
bandry of  the  judgment  debtor,  not  exceeding  in 
value  the  sum  of  one  thousand  dollars;  also,  two 
oxen,  or  two  horses,  or  two  mules,  and  their  har- 
ness, one  cart  or  wagon,  and  food  for  such  oxen, 
horses,  or  mules,  for  one  month;  also,  all  seed, 
grain,  or  vegetables  actually  provided,  reserved, 
or  on  hand  for  the  purpose  of  planting  or  sowing 


279  THE   EXECUTION.  §  690 

at  any  time  within  the  ensuing  six  months,  not 
exceeding  in  value  the  sum  of  two  hundred  dollars, 
and  seventy-five  bee-hives,  and  one  horse  and  ve- 
hicle belonging  to  any  person  who  is  maimed  or 
crippled,  and  the  same  is  necessary  in  his  busi- 
ness; 

4.  The  tools  or  implements  of  a  mechanic  or 
artisan  necessary  to  carry  on  his  trade;  the  no- 
tarial seal,  records,  and  office  furniture  of  a  notary 
public;  the  instruments  and  chest  of  a  surgeon, 
physician,  surveyor,  or  dentist,  necessary  to  the 
exercise  of  their  profession,  with  their  professional 
libraries  and  necessary  office  furniture;  the  pro- 
fessional libraries  of  attorneys,  judges,  ministers 
of  the  gospel,  editors,  school  teachers,  and  music 
teachers,  and  their  necessary  office  furniture;  also, 
the  musical  instruments  of  music  teachers  actually 
used  by  them  in  giving  instructions,  and  all  the  in- 
dexes, abstracts,  boolvS,  papers,  maps,  and  oflSce 
furniture  of  a  searcher  of  records  necessary  to  be 
used  in  his  profession;  also,  the  typewriters,  or 
other  mechanical  contrivances  employed  for  writ- 
ing in  type,  actually  used  by  the  owner  thereof  for 
making  his  living; also,  one  bicycle,  when  the  same- 
is  used  by  its  owner  for  the  purpose  of  carrying 
on  his  regular  business,  or  when  the  same  is  used 
for  the  purpose  of  transporting  the  owner  to  and 
from  his  place  of  business; 

5.  The  cabin  or  dwelling  of  a  miner,  not  ex- 
ceeding in  value  the  sum  of  five  hundred  dollars; 
also,  his  sluices,  pipes,  hose,  windlass,  derrick,, 
cars,  pumps,  tools,  implements,  and  appliances, 
necessary  for  carrying  on  any  mining  operations,, 
not  exceeding  in  value  the  aggregate  sum  of  five- 
hundred  dollars;  and  two  horses,  mules,  or  oxen,- 
with  their  harness,  and  food  for  such  horses,, 
mules,  or  oxen  for  one  month,  when  necessary  to» 
be  used  in  any  whim,  windlass,  derrick,  car,  pump,. 


S  t>90  THE   EXECUTION.  280 

or  hoisting  gear;  and  also  bis  mining  claim,  actu- 
ally worked  by  him,  not  exceeding  in  value  the 
sum  of  one  thousand  dollars; 

<;.  Two  horses,  two  oxen,  or  two  mules,  and 
their  harness,  and  one  cart  or  wagon,  one  dray 
or  truck,  one  coupe,  one  hack  or  carriage,  for  one 
or  two  horses,  by  the  use  of  which  a  cartman, 
drayman,  truckman,  huckster,  peddler,  hackman, 
teamster,  or  other  laborer  habitually  earns  his  liv- 
ing, and  one  horse,  with  vehicle  and  harness  or 
other  equipments,  used  by  a  physician,  surgeon, 
constable,  or  minister  of  the  gospel,  in  the  legiti- 
mate practice  of  his  profession  or  business,  with 
food  for  such  oxen,  horses,  or  mules  for  one 
month; 

7.  One  fishing  boat  and  net,  not  exceeding  the 
total  value  of  tive  hundred  dollars,  the  property  of 
any  fisherman,  by  the  lawful  use  of  which  he 
earns  a  livelihood; 

8.  Poultry  not  exceeding  in  value  twenty-five 
dollars; 

9.  Seamen  and  sea-going  fishermen's  wages  and 
earnings,  not  exceeding  one  hundred  dollars; 

10.  The  earnings  of  the  judgment  debtor  for  his 
personal  services  rendered  at  any  time  within 
thirty  days  next  preceding  the  levy  of  execution  or 
attachment,  when  it  appears,  by  the  debtor's  affi- 
davit or  otherwise,  that  such  earnings  are  neces- 
sary for  the  use  of  his  family,  residing  in  this 
State,  supported  in  whole  or  in  part  by  his  labor; 
but  Avhere  debts  are  incurred  by  any  such  per- 
son, or  his  wife  or  family,  for  the  common  neces- 
saries of  life,  or  have  been  incurred  at  a  time  when 
the  debtor  had  no  family,  residing  in  this  State, 
supported  in  Avliole  or  in  imrt  by  his  labor,  the  one- 
half  of  such  earnings  above  mentioned  are  never- 
tlieless  subject  to  execution,  garnishment,  or  at- 
tncliment  to  satisfy  debts  so  incurred: 


281  THE  EXECUTION.  §  G.!0 

11.  Theshares  held  by  a  member  of  a  homestead 
association  duly  incorporated,  not  exceeding  in 
value  one  thousand  dollars,  if  the  person  holding 
the  shares  is  not  the  owner  of  a  homestead  under 
the  laws  of  this  State.  All  the  nautical  instru- 
ments and  wearing  apparel  of  any  master,  officer, 
or  seaman  of  any  steamer  or  other  vessel; 

12.  All  moneys,  benefits,  privileges,  or  immuni- 
ties, accruing  or  in  any  manner  growing  out  of 
any  life  insurance  on  the  life  of  the  debtor,  if  the 
annual  premiums  paid  do  not  exceed  five  hundred 
dollars ; 

13.  All  fire  engines,  hooks  and  ladders,  with  the 
carts,  trucks  and  carriages,  hose,  buckets,  imple- 
ments, and  apparatus  thereunto  appertaining,  and 
all  furniture  and  uniforms  of  any  fire  company 
or  department  organized  under  any  laws  of  this 
State; 

14.  All  arms,  uniforms,  and  accoutrements  re- 
quired by  law  to  be  kept  by  any  person,  and  also 
one  gun,  to  be  selected  by  the  debtor; 

15.  All  courthouses,  jails,  public  offices,  and 
buildings,  lots,  grounds,  and  personal  property, 
the  fixtures,  furniture,  books,  papers,  and  appur- 
tenances belonging  and  pertaining  to  the  jail  and 
public  offices  belonging  to  any  county,  or  to  any 
city  and  county  of  this  State,  and  all  cemeteries, 
public  squares,  parks,  and  places,  public  build- 
ing, town  halls,  markets,  buildings  for  the  use  of 
fire  departments  and  military  organizations,  and 
the  lots  and  grounds  thereto  belonging  and  apper- 
taining, owned,  or  held  by  any  town  or  incorpo- 
rated city,  or  dedicated  by  such  town  or  city  to 
health,  ornament,  or  public  use,  or  for  the  use  of 
any  fire  or  military  company  organized  under  the 
laws  of  this  State; 

10.  All  material  purchased  in  good  faith  for  use 
in  the  construction,   alteration,  or  repair  of  any 


§§  691,  692  THE  EXECUTION.  282 

building,  miuiug  claim,  or  other  improvement,  as 
long-  as  in  good  faith  the  same  is  about  to  be  ap- 
plied to  the  construction,  alteration  or  repair  of 
such  building,  mining  claim,  or  other  improve- 
ment; 

No  article,  however,  or  species  of  property  men- 
tioned in  this  section  is  exempt  from  execution  is- 
sued upon  a  judgment  recovered  for  its  price,  or 
upon  a  judgment  of  foreclosure  of  a  mortgage 
thereon.  [Approved  March  27,  1897;  Stats.  1897, 
c.  120;  Also  amended  in  1887;  Stats.  1887,  99.] 

§  691.  The  Sheriff  must  execute  the  writ 
against  the  property  of  the  judgment  debtor,  by 
levying  on  a  sufficient  amount  of  property,  if  there 
be  sufficient,  collecting  or  selling  the  things  in  ac- 
tion, and  selling  the  other  property,  and  paying  to 
the  plaintiff  or  his  attorney  so  much  of  the  pro- 
ceeds as  will  satisfy  the  judgment.  Any  excess  in 
the  proceeds  over  the  judgment  and  accruing  costs 
must  be  returned  to  the  judgment  debtor,  unless 
otherwise  directed  by  the  judgment  or  order  of  the 
court.  When  there  is  more  property  of  the  judg- 
ment debtor  than  is  sufficient  to  satisfy  the  judg- 
ment and  accruing  costs  within  the  view  of  the 
Sheriff,  he  must  levy  only  on  such  part  of  the 
property  as  the  judgment  debtor  may  Indicate,  if 
the  property  indicated  be  amply  sufficient  to  sat- 
isfy the  judgment  and  costs.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  321. 
In  effect  July  1,  1874.] 

Sheriff  must  execute  writ:  Polit.  Code,  sec.  4180. 

Selling  property:    Sec.  G94  et  seq. 

Paying  over  proceeds:  Polit.  Code,  sec.  4181;  la- 
bor claims:    Sec.  1206. 

Debts,  payment  of  to  Sheriff:    Sees.  544,  71G. 

§  692.  Before  the  sale  of  property  on  execution, 
notice  thereof  must  be  given  as  follows: 


283  THE  EXECUTION.  §  693 

1.  In  case  of  perishable  property,  by  posting 
written  notice  of  the  time  and  place  of  sale  in 
three  public  places  of  the  township  or  city  where 
the  sale  is  to  tal^e  place,  for  such  time  as  may  be 
reasonable,  considering  the  character  and  condi- 
tion of  the  property; 

2.  In  case  of  other  personal  property,  by  posting 
a  similar  notice  in  three  public  places  in  the  town- 
ship or  city  where  the  sale  is  to  tal^e  place,  for 
not  less  than  five  nor  more  than  ten  days; 

3.  In  case  of  real  property,  by  posting  a  similar 
notice,  particularly  describing  the  property,  for 
twenty  days,  in  three  public  places  of  the  town- 
ship or  city  where  the  property  is  situated,  and 
also  where  the  property  is  to  be  sold,  and  pub- 
lishing a  copy  thereof,  once  a  weelv  for  the  same 
period,  in  some  newspaper  published  in  the  county, 
if  there  be  one; 

4.  When  the  judgment  under  which  the  prop- 
erty is  to  be  sold  is  made  payable  in  a  specified 
kind  of  money  or  currency,  the  several  notices  re- 
quired by  this  section  must  state  the  kind  of 
money  or  currency  in  which  bids  may  be  made  at 
such  sale,  which  must  be  the  same  as  that  speci- 
fied in  the  judgment.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  322.  In  ef- 
fect July  1,  1874.] 

Sale  of  vessels,  notice  of:   Sees.  824,  827. 
Sale  without  notice:    See  sec.  693. 
Perishable  property,  sale  under  attachment:  Sec. 
547. 
Specified  kind  of  money:  See  sec.  682;  subd.  4. 

§  693.  An  officer  selling  without  the  notice  pre- 
scribed by  the  last  section  forfeits  five  hundred 
dollars  to  the  aggrieved  party,  in  addition  to  his 
actual  damages;  and  a  person  willfully  taking 
down  or  defacing  the  notice  posted,  if  done  before 


§§  694,  G95  THE   EXECUTION.  284 

the  sale  or  the  satisfaction  of  the  judgment  (if 
the  judgment  be  satisfied  before  sale),  forfeits  five 
hundred  dollars. 

§  694.  All  sales  of  property  under  execution 
must  be  made  at  auction  to  the  highest  bidder,  be- 
t^Yeen  the  hours  of  nine  in  the  morning  and  five 
in  the  afternoon.  After  suflicient  property  has 
been  sold  to  satisfy  the  execution,  no  more  can  be 
sold.  Neither  the  ofiicer  holding  the  execution  nor 
his  deputy  can  become  a  purchaser  or  be  inter- 
ested in  any  purchase  at  such  sale.  When  the  sale 
is  of  personal  property,  capable  of  manual  deliv- 
ery, it  must  be  within  view  of  those  who  attend 
the  sale,  and  be  sold  in  such  parcels  as  are  likely 
to  bring  the  highest  price;  and  when  the  sale  is  of 
real  property,  consisting  of  several  linown  lots  or 
parcels,  they  must  be  sold  separately;  or,  when  a 
portion  of  such  real  property  is  claimed  by  a  third 
person,  and  he  requires  it  to  be  sold  separately, 
such  portion  must  be  thu&;  sold.  The  judgment 
debtor,  if  present  at  the  sale,  may  also  direct  the 
order  in  which  property,  real  or  personal,  shall  be 
sold,  when  such  property  consists  of  several 
known  lots  or  parcels,  or  of  articles  which  can  be 
sold  to  advantage  separately,  and  the  Sheriff  must 
follow  such  directions. 

Auctioneer,  Sheriff  as:   Polit.  Code,  sec.  3291. 

§  695.  If  a  purchaser  refuse  to  pay  the  amount 
bid  by  him  for  property  struck  off  to  him  at  a  sale 
under  execution,  the  officer  may  again  sell  the 
property  at  any  time  to  the  highest  bidder,  and  if 
any  loss  be  occasioned  thereby,  the  officer  may  re- 
cover the  amount  of  such  loss,  with  costs,  from 
the  bidder  so  refusing,  in  any  court  of  competent 
jurisdiction.  [Amendment  approved  March  24, 
1874;  Amendments  1873-4,  323.  In  effect  July  1, 
1874.] 


285  THE    EXECUTION.  §§  696-700 

vj  696.  When  a  purchaser  refuses  to  pay,  the 
officer  may,  in  his  discretion,  thereafter,  reject  any 
subsequent  bid  of  such  person.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  323. 
In  effect  July  1,  1874.] 

§  697.  The  two  preceding  sections  must  not  be 
construed  to  mal^e  the  officer  liable  for  any  more 
than  the  amount  bid  by  the  second  or  subsequent 
purchaser,  and  the  amount  collected  from  the  pur- 
chaser refusing  to  pay. 

§  698.  When  the  purcliaser  of  any  personal 
property,  capable  of  manual  delivery,  pays  the 
purchase  money,  the  officer  malving  the  sale  must 
deliver  to  the  purcliaser  the  property,  and  if  de- 
sired, execute  and  deliver  to  him  a  certificate  of 
the  sale.  Such  certificate  conveys  to  the  purchaser 
all  the  right  which  the  debtor  had  in  such  property 
on  the  day  the  execution  or  attachment  was  levied. 

Certificate  of  sale:   See  next  section. 

S  699.  AVhen  the  purchaser  of  any  personal 
property,  not  capable  of  manual  delivery,  pays  the 
purchase  money,  the  officer  making  the  sale  must 
execute  and  deliver  to  the  purchaser  a  certificate 
of  sale.  Such  certificate  conveys  to  the  purchaser 
all  the  right  which  the  debtor  had  in  such  prop- 
erty on  the  day  the  execution  or  attachment  was 
levied. 

Attachment:   Sec.  542. 

§  700.  Upon  a  sale  of  real  property,  the  pur- 
<J  chaser  is  substituted  to  and  acquires  all  the  right, 
title,  interest,  and  claim  of  the  judgment  debtor 
thereto;  and  when  the  estate  is  less  than  a  lease- 
hold of  two  years'  unexpired  term,  the  sale  is  ab- 
solute.    In  all  other  cases,  the  property  is  subject 


§  701  THE    EXECUTION.  286 

to  redemption,  as  provided  in  this  cliapter.  The 
officer  must  give  to  the  purchaser  a  certificate  of 
sale,  containing: 

1.  A  particular  description  of  the  real  property 
sold; 

2.  The  price  bid  for  each  distinct  lot  or  parcel; 

3.  The  whole  price  paid; 

4.  When  subject  to  redemption,  it  must  be  so 
stated. 

And  when  the  judjiment  under  which  the  sale 
has  been  made,  is  made  payable  in  a  specified  kind 
of  money  or  currency,  the  certificate  must  also- 
show  the  kind  of  money  or  currency,  in  which 
such  redemption  may  be  made,  which  must  be  the 
same  as  that  specified  in  the  judgment.  A  dupli- 
cate of  such  certificate  must  be  filed  by  the  offi- 
cer in  the  office  of  the  Ilecorder  of  the  county. 

Specified  kind  of  money:    Sec.  682,  subd.  4. 

Certificate,  recording:  Polit.  Code,  sec.  4237. 

Sheriff's  deed,  and  what  passes  by  it:   Sec.  703. 

Injunction  to  restrain  person  in  possession  from 
waste:  Sec.  745.  Recovery  of  damages  for  waste: 
Sec.  746. 

Writ  of  assistance.    Sec.  1210. 

§  701.  Property  sold  subject  to  redemption,  as 
provided  in  the  last  section,  or  any  part  sold  sep- 
arately, may  be  redeemed  in  the  manner  herein- 
after provided  by  the  folloAving  persons,  or  their 
successors  in  interest: 

1.  The  judgment  debtor,  or  his  successor  in  in- 
terest, in  the  whole  or  any  part  of  the  property; 

2.  A  creditor  having  a  lien  by  judgment  or  mort- 
gage on  the  property  sold,  or  on  some  share  or 
part  thereof,  sul)sequent  to  that  on  which  the 
property  was  sold.  The  persons  mentioned  in  the 
second  subdivision  of  this  section  are,  in  this  chap- 
tor,  termed  redemptioners. 


287  THE   EXECUTION.  §§  702,  703 

Iledemptiou,  mode  of:    Sec.  702  et  seq. 
Judgment  creditor,  redemption  by:  Sec.  1505. 
Parties  entitled  to  redeem:    Sees.  346,  347. 

§  702.  The  judgment  debtor,  or  redemptioner, 
may  redeem  tlie  property  from  tlie  purcliaser  any 
time  williin  twelve  months  after  the  sale  on  pay- 
ing the  purchaser  the  amount  of  his  purchase, 
witli  one  per  cent  per  month  thereon  in  addition, 
up  to  the  time  of  redemption,  together  with  the 
amount  of  any  assessment  or  taxes  which  the 
purchaser  may  have  paid  thereon  after  purchase, 
and  interest  on  sucli  amount.  And  if  the  pur- 
chaser be  also  a  creditor,  having  a  prior  lieu  to 
that  of  the  redemptioner,  other  than  the  judgment 
under  which  said  purchase  was  made,  the  amount 
of  such  lien  with  interest.  [Approved  February 
26,  1897;  Stats.  1897,  c.  44.  In  effect  immediately; 
Also  amended  in  1895;  Stats.  1895,  225.] 

§  703.  If  property  be  so  redeemed  by  a  re- 
demptioner, another  redemptioner  may,  within 
sixty  days  after  the  last  redemption,  again  redeem 
it  from  the  last  redemptioner  on  paying  the  sum 
paid  on  such  last  redemption,  with  two  per  cent 
thereon  in  addition,  and  the  amount  of  any  assess- 
ment or  taxes  which  the  last  redemptioner  may 
have  paid  thereon  after  the  redemption  by  him, 
Avith  interest  on  such  amount,  and,  in  addition,  the 
amount  of  any  liens  held  by  said  last  redemptioner 
prior  to  his  own,  with  interest;  but  the  judgment 
under  which  the  property  was  sold  need  not  be  so 
paid  as  a  lien.  The  property  may  be  again,  and 
as  often  as  a  redemptioner  is  so  disposed,  re- 
demed  from  any  previous  redemptioner  within 
sixty  days  after  the  last  redemption,  on  paying  the 
sum  paid  on  the  last  previous  redemption,  with 
two  per  cent  thereon  in  addition,  and  the  amounts 


§  703  THE   EXECUTION.  288 

of  any  assessments  or  taxes  which  the  last  pre- 
vious redemptioner  paid  after  tlie  redemption  by 
him,  with  interest  thereon,  and  the  amount  of  any 
liens,  other  than  the  judgment  under  which  the 
property  was  sold,  held  by  the  last  redemptioner 
previous  to  his  own,  with  interest.  Written  notice 
of  redemption  must  be  given  to  the  Sheriff  and  a 
duplicate  filed  with  the  Recorder  of  the  county, 
and  if  any  taxes  or  assessments  are  paid  by  the 
redemptioner,  or  if  he  has  or  acquires  any  lien 
other  than  that  upon  which  the  redemption  was 
made,  notice  thereof  must  in  lilce  manner  be  given 
to  the  Sheriff  and  filed  M'ith  the  Recorder;  and  if 
such  notice  be  not  filed,  the  property  may  be  re- 
deemed without  paying  such  tax,  assessment,  or 
lien.  If  no  redemption  be  made  within  twelve 
months  after  the  sale,  the  purchaser,  or  his  as- 
signee, is  entitled  to  a  conveyance;  or  if  so  re- 
deemed, whenever  sixty  days  have  elapsed,  and  no 
other  redemption  has  been  made,  and  notice  there- 
of given,  and  the  time  for  redemption  has  expired, 
the  last  redemptioner,  or  his  assignee,  is  entitled 
to  a  Sheriff's  deed;  but,  in  all  cases,  the  judgment 
debtor  shall  have  the  entire  period  of  twelve 
months  from  the  date  of  the  sale  to  redeem  the 
property.  If  the  judgment  debtor  redeem,  he 
must  make  the  same  payments  as  are  required  to 
effect  a  rcilemptiou  by  a  redemptioner.  If  the 
debtor  redeem,  the  effect  of  the  sale  is  terminated, 
and  he  is  restored  to  his  estate.  Upon  a  redemp- 
tion by  the  debtor,  the  person  to  whom  the  pay- 
ment is  made  must  execute  and  deliver  to  him  a 
certificate  of  redemption,  acknowledged  or  proved 
before  an  officer  authorized  to  take  acknoAvledg- 
ments  of  conveyances  of  real  property.  Such  cer- 
tificate must  be  filed  and  recorded  in  the  office  of 
the  Recorder  of  the  county  in  which  the  property 
is  situated,  and  the  Recorder  must  note  the  record 


289  TITE    EXECUTION.  §§  704,  706 

thereof  in  the  margin  of  the  record  of  the  certifi- 
cate of  sale.  [Approved  B'ebruary  26,  1897;  Stats. 
1897,  c.  44;  Also  amended  in  1895;  Stats.  1895,  226. 

Writ  of  assistance:    See  sec.  682,  ante. 
Certificate,  recording:   Polit.  Code,  sec.  4234. 

§  704.  The  payments  mentioned  in  the  last  two 
sections  may  be  made  to  the  purchaser  or  redemp- 
tioner,  or  for  him  to  the  ofiacer  who  made  the  sale. 
When  the  judgment  under  which  the  sale  has  been 
made  is  payable  in  a  specified  kind  of  money  or 
currency,  payments  must  be  made  in  the  same 
kind  of  monej'  or  currency,  and  a  tender  of  the 
money  is  equivalent  to  payment. 

Specified  kind  of  money:    See  see.  682,  subd.  4. 

§  705.  A  redemptioner  must  produce  to  the  offi- 
cer or  person,  from  whom  he  seeks  to  redeem,  and 
serve  with  his  notice  to  the  Sheriff: 

1.  A  copy  of  the  docket  of  the  judgment  under 
which  he  claims  the  right  to  redeem,  certified  by 
the  Clerk  of  the  Court,  or  of  the  county  where  the 
judgment  is  docketed,  or  if  he  redeem  upon  a 
mortgage  or  other  lien,  a  note  of  the  record  there- 
of, certified  by  the  recorder; 

2.  A  copy  of  any  assignment  necessary  to  estab- 
lish his  claim,  verified  by  the  affidavit  of  himself, 
or  of  a  subscribing  witness  thereto; 

3.  An  affidavit  by  himself  or  his  agent,  show- 
ing the  amount  then  actually  due  on  the  lien; 

§  706.  Until  the  expiration  of  the  time  allowed 
for  redemption,  the  coiu't  may  restrain  the  com- 
mission of  waste  on  the  property,  by  order  granted 
with  or  without  notice,  on  the  application  of  the 
purchaser  or  the  judgment  creditor.  But  it  is  not 
waste  for  the  person  in  possession  of  the  property 
Code  Civ.  Proc— 25. 


§  707  THE  EXECUTION.  290 

at  the  time  ol:  sale,  or  entitled  to  possession  after- 
ward, during:  the  period  allowed  for  redemption, 
to  continue  to  use  it  in  the  same  manner  in  which 
it  was  previously  used;  or  to  use  in  the  ordinary- 
course  of  husbandry;  or  to  make  the  necessary  re- 
pairs of  buildings  thereon;  or  to  use  wood  or  tim- 
ber on  the  property  therefor,  or  for  the  repair  of 
fences,  or  for  fuel  in  his  family,  while  he  occu- 
pies the  property. 
Waste:   Sees.  745-746. 

§  707.  The  purchaser,  from  the  time  of  the  sale 
until  a  redemption,  and  a  redemptioner,  from  the 
time  of  his  redemption  until  another  redemption, 
is  entitled  to  receive,  from  the  tenant  in  posses- 
sion, the  rents  of  the  property  sold,  or  the  value 
of  the  use  and  occupation  thereof.  But  when  any 
rents  or  profits  have  been  received  by  the  judg- 
ment creditor  or  purchaser,  or  his  or  their  assigns, 
from  the  property  thus  sold  preceding  such  re- 
demption, the  amounts  of  such  rents  and  profits 
shall  be  a  credit  upon  the  redemption  money  to  be 
paid;  and  if  the  redemptioner  or  judgment  debtor, 
before  the  expiration  of  the  time  allowed  for  such 
redemption  demands  in  writing  of  such  purchaser 
or  creditor,  or  his  assigns  a  written  and  verified 
statement  of  the  amounts  of  such  rents  and  profits 
thus  received,  the  period  for  redemption  is  extend- 
ed five  days  after  such  sworn  statement  is  given 
by  such  purchaser  or  his  assigns  to  such  redemp- 
tioner or  debtor.  If  such  purchaser  or  his  assigns 
shall,  for  a  period  of  one  month  from  and  after 
such  demand,  fail  or  refuse  to  give  such  state- 
ment, such  redemptioner  or  debtor  may  bring  an 
action  in  any  court  of  competent  jurisdiction  to 
compel  an  accounting  and  disclosure  of  such  rents 
and  profits,  and  until  fifteen  days  from  and  after 
the  final  determination  of  such  action,  the  right 


291  THE  EXECUTION.  §§  708,  709 

of  redemptiou  is  extended  to  such  redemiJtioner  or 
debtor. 

§  708.  If  the  piu'chaser  of  real  property  sold 
on  execution,  or  his  successor  in  interest,  be  evict- 
ed therefrom  in  consequences  of  irregularities  in 
the  proceedings  concerning  the  sale,  or  of  the  re- 
versal or  discharge  of  the  judgment,  he  may  re- 
cover the  price  paid,  with  interest,  from  the  judg- 
ment creditor.  If  the  purchaser  of  property  at 
Sheriff's  sale,  or  his  successor  in  interest,  fail  to 
recover  possession  in  conseqtience  of  irregularity 
in  the  proceedings  concerning  the  sale  or  because 
the  property  sold  was  not  subject  to  execution  and 
sale,  the  court  having  jtirisdiction  thereof  must, 
after  notice  and  on  motion  of  such  party  in  inter- 
est, or  his  attorney,  revive  the  original  judgment 
in  the  name  of  the  petitioner,  for  the  amount  paid 
by  such  purchaser  at  the  sale,  with  interest  there- 
on from  the  time  of  payment,  at  the  same  rate 
that  the  original  jtidgment  bore;  and  the  judg- 
ment so  revived  has  the  same  force  and  effect  as 
would  an  original  judgment  of  the  date-  of  the  re- 
vival, and  no  more. 

§  709.  When  property,  liable  to  an  execution 
against  several  persons,  is  sold  thereon,  and  more 
than  a  due  proportion  of  the  jtidgment  is  satis- 
fied out  of  the  proceeds  of  the  sale  of  the  property 
of  one  of  them,  or  one  of  them  pays,  without  a 
sale,  more  than  his  proportion,  he  may  compel  con- 
tribution from  the  others;  and  when  a  jtidgment  is 
against  several,  and  is  upon  an  obligation  of  one 
of  them,  as  security  for  another,  and  the  surety 
pays  the  amount,  or  any  part  thereof,  either  by 
sale  of  his  property  or  before  sale,  he  may  compel 
repayment  from  the  principal;  in  such  case,  the 
person  so  paying  or  contributing  is  entitled  to  the 


§  714  SUPPLEMENTARY   TO   EXECUTION.  292 

benefit  of  the  judgment,  to  enforce  contribution  or 
repayment,  if,  Avitbin  ten  days  after  bis  payment, 
he  file  with  the  Cleric'  of  the  Court  where  the  judg- 
ment was  rendered,  notice  of  his  payment  and 
claim  to  contribution  or  repayment.  Upon  a  filing 
of  such  notice,  the  Clerk  must  malie  an  entry 
thereof  in  the  margin  of  the  docl^et. 


CHAPTER  II. 

PROCEEDINGS     SUPPLEMENTARY     TO     THE     EXECU- 
TION. 

§  714.  Debtor  required  to  answer  concerning  his  property, 
when. 

§  715.  Proceedings  to  compel  debtor  to  appear.  In  what 
cases  he  may  be  arrested.  What  bail  may  be  given. 

§  716.  Any  debtor  of  the  judgment  debtor  may  pay  the  lat- 
ter's  creditor. 

§  717.  Examination  of  debtors  of  judgment  debtor,  or  of 
those  having  property  belonging  to  him. 

$  718.     Witnesses  required  to  testify 

§  719.  Judge  may  order  property  to  be  applied  on  execu- 
tion. 

§  720.  Proceedings  upon  claim  of  another  party  to  prop- 
erty, or  on  denial  of  indebtedness  to  judgment 
debtor. 

§  721.     Disobedience   of  orders,   how   punished. 

§  714.  When  an  execution  against  property  of 
the  judgment  debtor,  or  of  any  one  of  several  debt- 
ors in  the  same  judgment,  issued  to  the  Sheriff 
of  the  county  Avhere  he  resides,  or  if  he  do  not 
reside  in  this  State,  to  the  Sheriff  of  the  county 
where  the  judgment-roll  is  filed,  is  returned  unsat- 
isfied in  whole  or  in  part,  the  judgment  creditor, 
at  any  time  after  such  return  is  made,  is  entitled 
to  an  order  from  a  Judge  of  the  court,  requiring 
such  judgment  debtor  to  appear  and  answer  con- 
cerning his  property  before  such  judge,  or  a  ref- 
eree appointed  liy  him.  at  a  time  and  place  speci- 


293  SUPPLEMENTARY   TO   EXECUTION.  §  715 

tied  ill  tlie  order;  but  iio  judgment  debtor  must  be 
required  tp  attend  before  a  judge  or  referee  out 
of  the  county  in  which  he  resides.  [Amendment 
approved  ^Nlarch  9,  1880;  Amendments  1880,  18.  In 
effect  March  9,  1880.] 

Conduct  of  examination:    Sec.  718. 

lieceivcr,  aiding  proceedings:    Sec.  504,  subd.  4. 

§  715.  After  the  issuing  of  an  execution  against 
property,  and  upon  proof,  by  affidavit  of  a  party 
or  otlierwise,  to  the  satisfaction  of  a  Judge  of  the 
court,  tliat  any  judgment  debtor  has  property 
which  he  unjustly  refuses  to  apply  toward  the  sat- 
isfaction of  the  judgment,  such  judge  may,  by  an 
order,  require  the  judgment  debtor  to  appear,  at 
a  specified  time  and  place,  before  such  judge,  or  a 
referee  appointed  by  him  to  answer  concerning  the 
same;  and  such  proceedings  may  thereupon  be  had 
for  the  application  of  the  property  of  the  judg- 
ment debtor  toward  the  satisfaction  of  the  judg- 
ment, as  are  provided  upon  the  return  of  an  exe- 
cution. Instead  of  the  order  requiring  the  attend- 
ance of  the  judgment  debtor,  the  judge  may,  upon 
affidavit  of  the  judgment  creditor,  his  agent,  or 
attorney,  if  it  appear  to  him  that  there  is  danger 
of  the  debtor  absconding,  order  the  Sheriff  to  ar- 
rest the  debtor,  and  bring  him  before  such  .Judge. 
Upon  being  brought  before  the  Judge,  he  may  be 
ordered  to  enter  into  an  undertaliing,  with  suffi- 
cient surety,  that  he  will  attend  from  time  to  time 
before  the  Judge  or  referee,  as  may  be  directed 
during  the  pendency  of  proceedings  and  until  the 
final  termination  thereof,  and  will  not  in  the  mean- 
time dispose  of  any  portion  of  his  property  not  ex- 
empt from  execution.  In  default  of  entering  into 
such  undertaking  he  may  be  committed  to  prison. 
[Amendment  approved  March  9,  1880;  Amend- 
ments 1880,  5.    In  effect  March  9,  1880.] 


§§  716-718      SUPPLEMENTARY  TO  EXECUTION.  294 

Appear  and  ansTver:   Sec.  718. 

Application  of  property,  of  judgment  debtor,  to 
satisfaction  of  judgment:    Sec.  719. 

Arrest  of  debtor,  as  provisional  remedy:  Sees 
478-504. 

Discharge  of  persons  imprisoned,  on  civil  pro- 
cess:   Sees.  1143-1154. 

§  716.  After  the  issuing  of  an  execution  against 
property,  and  before  its  return,  any  person  indebt- 
ed to  the  judgment  debtor  may  pay  to  the  Sheriff 
the  amount  of  his  debt,  or  so  much  thereof  as  may 
be  necessary  to  satisfy  the  execution;  and  the 
Sheriff's  receipt  is  a  sufficient  discharge  for  the 
amount  so  paid. 

Attachment:    Compare  sec.  544. 

Receiver:   Sec.  564. 

§  717.  After  the  issuing  or  return  of  an  execu- 
tion against  property  of  the  judgment  debtor,  or 
of  any  one  of  several  debtors  in  the  same  judg- 
ment, or  upon  proof  by  affidavit  or  otherwise,  to 
the  satisfaction  of  the  judge,  that  any  person  or 
corporation  has  property  of  such  judgment  debtor, 
or  is  indebted  to  him  in  an  amount  exceeding  fifty 
dollars,  the  judge  may,  by  an  order,  require  such 
person  or  corporation,  or  any  officer  or  member 
thereof,  to  appear  at  a  specified  time  and  place 
before  him,  or  a  referee  appointed  by  him,  and 
answer  concerning  the  same. 

Share  in  deceased's  estate:   Sec.  16G8. 

Receiver:   Sec.  564. 

Referee:   Sec.  714. 

§  718.  Witnesses  may  be  required  to  appear 
and  testify  before  the  judge  or  referee,  upon  any 
proceeding  under  this  chapter,  in  the  same  man- 
ner as  upon  the  trial  of  an  issue. 


295  SUPPLEMENTARY  TO  EXECUTION.         §§  719-721 

Witnesses,  rights  and  duties  of:   Sees.  2064-2070. 

§  719.  The  judge  or  referee  may  order  any 
property  of  a  judgment  debtor,  not  exempt  from 
execution,  in  the  hands  of  such  debtor,  or  any 
other  person,  or  due  to  the  judgment  debtor,  to  be 
applied  toward  the  satisfaction  of  the  judgment. 

Exempt  from  execution:   Sec.  G90. 

Wages,  etc.:    Sec.  1206. 

Share  in  deceased's  estate:   Sec.  1668. 

§  720.  If  it  appear  that  a  person  or  corporation, 
alleged  to  have  property  of  the  judgment  debtor, 
or  to  be  indebted  to  him,  claims  an  interest  in  the 
property  adverse  to  him,  or  denies  the  debt,  the 
court  or  judge  may  authorize  by  an  order  made  to 
that  effect,  the  judgment  creditor  to  institute  an 
action  against  such  person  or  corporation  for  the 
recovery  of  such  interest  or  debt;  and  the  court  or 
judge  may,  by  order,  forbid  a  transfer  or  other  dis- 
position of  such  interest  or  debt,  until  an  action 
can  be  commenced  and  prosecuted  to  judgment. 
Such  order  may  be  modified  or  vacated  by  the 
judge  granting  the  same,  or  the  court  in  which  the 
action  is  brought,  at  any  time,  upon  such  terms  as 
may  be  just. 

Receiver:   Sec.  564. 

Wages,  etc.:   Sec.  1206. 

§  721.  If  any  person,  party,  or  witness  disobey 
an  order  of  the  referee,  properly  made,  in  the 
proceedings  before  him,  under  this  chapter,  he  may 
be  punished  by  the  court  or  judge  ordering  the 
reference,  for  a  contempt. 

Contempt:   Sec.  1209  et  seq. 


^ 


§  726  FORECLOSURE   OP  MORTGAGES.  296 

TITLE   X. 

ACTIONS  IN  PARTICULAR  CASES. 

Chapter  I.    Actions  for  the  foreclosure    of    mort- 
gages. 
II.    Actions  for  nuisance,  waste,  and  will- 
ful trespass,  in  certain  cases,  on  real 
property. 

III.  Actions  to  determine  conflicting  claims 

to  real  property,  and  other  provi- 
sions relating  to  actions  concerning 
real  estate. 

IV.  Actions  for  the  partition  of  real  prop- 

erty. 
V.    Actions  for  the  usurpation  of  an  oflSce 
or  franchise. 
VI.    Of  actions  against  steamers,    vessels, 
and  boats. 

CHAPTER  I. 

ACTIONS    FOR    THE    FORECLOSURE    OF    MORTGAGES. 

5  726.     Proceedings    in    foreclosure   suits. 

§  727.     Surplus  money  to  be  deposited  in  court. 

§  728.     Proceedings  when  debt  secured  falls  due  at  different 

times. 
§  729.     Oath  and  undertaking  of  commissioner. 

§  726.  There  can  be  but  one  action  for  the  re- 
covery of  any  debt,  or  the  enforcement  of  any 
right  secured  by  mortgage  upon  real  estate  or  per- 
sonal property,  which  action  must  be  in  accord- 
ance with  the  provisions  of  this  chapter.  In  such 
action  the  court  may,  by  its  judgment,  direct  a 
sale  of  the  encumbered  property  (or  so  much  there- 
of as  may  be  necessary),  and  the  application  of  the 


297  FORECLOSURE   OF  MORTGAGES.  §  726 

proceeds  of  the  sale  to  the  payment  of  the  costs 
of  court,  and  the  expenses  of  the  sale,  and  the 
amount  due  plaintiff.  The  court  may,  by  its  judg- 
ment, or  at  any  time  after  judgment,  appoint  a 
commissioner  to  sell  the  encumbered  property.  If 
it  appear  from  the  Sheriff's  return,  or  from  the 
commissioner's  report,  that  the  proceeds  are  in- 
sufficient, and  a  balance  still  remains  due,  judg- 
ment can  then  be  docketed  for  such  balance 
against  the  defendant  or  defendants  personally 
liable  for  the  debt,  and  it  becomes  a  lien  on  the 
real  estate  of  such  judgment  debtor,  as  in  other 
cases  on  which  execution  may  be  issued.  No  per- 
son holding  a  conveyance  from  or  under  the  mort- 
gagor of  the  property  mortgaged,  or  having  a  lien 
thei'eon,  which  conveyance  or  lien  does  not  ap- 
pear of  record  in  the  proper  office  at  the  time  of 
the  commencement  of  the  action,  need  be  made  a 
party  to  such  action,  and  the  judgment  therein 
rendered,  and  the  proceedings  therein  had,  are  as 
conclusive  against  the  party  holding  such  unre- 
corded conveyance  or  lien  as  if  he  had  been  a 
party  to  the  action.  If  the  court  appoint  a  com- 
missioner for  the  sale  of  the  property,  he  shall  sell 
it  in  the  manner  provided  by  law  for  the  sale  of 
like  property  by  the  Sheriff  upon  execution;  and 
the  provisions  of  chapter  one,  title  nine,  part  two, 
of  the  Code  of  Civil  Procedure,  are  hereby  made 
applicable  to  sales  made  by  such  commissioners, 
and  the  powers  therein  given  and  the  duties  there- 
in imposed  on  Sheriffs  are  extended  to  such  com- 
missioners. In  the  event  of  the  death,  or  absence 
from  the  State,  or  other  disability  or  disqualifica- 
tion of  the  commissioner  so  appointed  to  sell  en- 
cumbered property,  the  court  may,  after  the  time 
for  redemption  has  expired,  appoint  an  elisor  to 
make  the  deed  or  deeds  due  to  the  purchaser  or 
purchasers  or  his  or  their  assigns,  of  the  propertj^ 


§  726  FORECLOSURE  OF  MORTGAGES.  298 

SO  sold  by  said  commissioner.  [Amendment  ap- 
proved March  26,  1895;  Stats.  1895,  98.  In  effect 
March  26,  1895.] 

This  section  was  also  amended  in  1893;  Stats. 
1893,  118. 

One  action  only:   See  sec.  744. 

Assistance,  writ  of:   See  sec.  1210. 

Mortgage,  generally:  See  Civil  Code,  sees.  2920- 
2971;  construction  of,  sec.  744;  estate,  against  prop- 
erty of,  sees.  1493,  1500,  1569,  1570;  lis  pendens: 
Sec.  409. 

Act  authorizing  court  to  fix  fee  on  foreclosure: 
See  post.  Appendix,  863. 

Waste:    Stic.   745. 

Injunction  to  restrain  v^-aste  by  party  in  posses- 
sion:   Sec.  745. 

Intervention,  by  wife  of  mortgagor  or  other  par- 
ty:   Sec.  387. 

Judgment:  Sec.  664;  by  default.  Sec.  585.  Re- 
lief:  Sec.  580. 

Personal  property,  mortgage  of.— A  mortgagee  of 
personal  property,  when  the  debt  to  secure  which 
the  mortgage  was  executed  becomes  due,  may 
foreclose  the  mortgagor's  right  of  redemption  by  a 
sale  of  the  property,  made  in  the  manner  and  upon 
the  notice  prescribed  by  the  title  on  "Pledge" :  Civ. 
Code,  sees.  2986-3011;  or  by  proceedings  under  the 
Code  of  Civil  Procedure:  Id.,  sec.  2967. 

Place  of  trial:    Sec.  392. 

Pleading  written  document:    Sees.  447-449. 

Possession,  mortgagee  in:    Sec.  744. 

A  mortgage  given  for  the  price  or  real  property 
at  the  time  of  its  conveyance  has  priority  over  all 
other  liens  created  against  the  purchaser,  subject 
to  the  operation  of  the  recording  laws:  Civ.  Code, 
sec.  2898. 

Receiver:   Sec.  564. 


299  FORECLOSURE  OF  MORTGAGES.         §§727-729 

Several  mortgages    or  debts,  installments,  etc.: 
Sec.  728. 
Tender:    Sec.  997,  and  notes. 

§  727.  If  there  be  surplus  money  remaining  af- 
ter payment  of  the  amount  due  on  the  mortgage, 
lien,  or  iucumbrauee  with  costs,  the  court  may 
cause  the  same  to  be  paid  to  the  person  entitled  to 
it,  and  in  the  meantime  may  direct  it  to  be  de- 
posited in  court. 

Deposit  in  court:    Sees.  573,  574,  2104. 
<^ 

§  728.  If  the  debt  for  which  the  mortgage,  lien, 
or  incumbrance  is  held,  is  not  all  due,  so  soon  as 
sufficient  of  the  property  has  been  sold  to  pay  the 
amount  due,  with  costs,  the  sale  must  cease;  and 
afterward,  as  often  as  more  becomes  due,  for  prin- 
cipal or  interest,  the  court  may,  on  motion,  order 
more  to  be  sold.  But  if  the  property  cannot  be  sold 
in  portions,  without  injury  to  the  parties,  the 
whole  may  be  ordered  to  be  sold  in  the  first  in- 
stance, and  the  entire  debt  and  costs  paid,  there 
being  a  rebate  of  interest  where  such  rebate  is 
proper. 

§  729.  The  commissioner,  before  entering  upon 
his  duties,  must  be  sworn  to  perform  them  faith- 
fully, and  the  court  making  the  appointment  shall 
require  of  him  an  undertalving,  with  sufficient  sure- 
ties, to  be  approved  by  the  court,  in  an  amount 
to  be  fixed  by  the  court,  to  the  effect  that  he  will 
faithfully  perform  the  duties  of  commissioner,  ac- 
cording to  law.  Within  thirty  days  after  such  sale, 
the  commissioner  must  file  with  the  Clerk  of  the 
Court  in  which  the  action  is  pending  a  verified  re- 
port and  account  of  the  sale,  together  with  the 
proper  affidavits,  showing  that  the  regular  and  re- 
quired notice  of  the  time  and  place  of  the  sale 


§  731  ACTIONS  FOR  NUISANCE,  ETC.  300 

was  given,  wliicli  report  and  account  shall  have 
the  same  force  and  effect  as  the  Sheriff's  return  in 
sales  under  execution.  In  all  cases  of  sales 
made  by  a  commissioner,  the  court  in  which  the 
proceedings  are  pending  shall  fix  a  reasonable 
compensation  for  the  commissioner's  services,  but 
in  no  case  to  exceed  the  sum  of  ten  dollars.  [New 
section  added  March  9,  1893;  Stats.  1893,  119;  in 
effect  immediately.] 

CHAPTER  II. 

ACTIONS  FOR  NUISANCE,  WASTE,  AND  WILLFUL. 
TRESPASS,  IN  CERTAIN  CASES  ON  REAL  PROP- 
ERTY. 

§  731.    Nuisance   defined,    and  actions   for. 

§  732.    Waste,   actions  for. 

§  733.  Trespass  for  cutting  or  carrying  off  trees,  etc.,  ac- 
tions  for. 

§  734.  Measure  of  damages  in  certain  cases  under  the  last 
section. 

§  735.  Damages  in  actions  for  forcible  entry,  etc.,  may  be 
trebled. 

§  731.  Anything  which  is  injurious  to  health, 
or  indecent,  or  offensive  to  the  senses,  or  an  ob- 
struction to  the  free  use  of  property,  so  as  to  inter- 
fere with  the  comfortable  enjoyment  of  life  or 
property,  is  a  nuisance,  and  the  subject  of  an  ac- 
tion. Such  action  may  be  brought  by  any  person 
whose  property  is  injuriously  affected,  or  whose 
personal  enjoyment  is  lessened  by  the  nuisance; 
and  by  the  judgment,  the  nuisance  may  be  en- 
joined or  abated,  as  well  as  damages  recovered. 

Nuisance— definition,  compare  Civil  Code,  sec. 
3479;  also,  see  Civil  Code,  sees.  3482-3483,  3490; 
damages,  Civil  Code,  sec.  3484. 

Nuisance.— Anything  Avhich  is  injurious  to 
health,  or  is  indecent,  or  offensive  to  the  senses, 
or  an  obstruction    to    the  free  use  of    property, 


301  ACTIONS   FOR   NUISANCE,    ETC.  §  732 

SO  as  to  interfere  with  the  comfortable  eujoymeut 
of  life  or  property,  or  unlawfully  obstructs  the 
free  passage  or  use  in  the  customary  manner  of 
any  navigable  lake,  or  river,  or  bay,  stream,  canal, 
or  basin,  or  any  public  park,  square,  street,  or 
highway,  is  a  nuisance:  Civ.  Code,  sec.  3479.  A 
public  nuisance  is  one  which  affects,  at  the  same 
time,  an  entire  community  or  neighborhood,  or  any 
considerable  number  of  persons,  although  the  ex- 
tent of  the  annoyance  or  damage  inflicted  upon  in- 
dividuals may  be  unequal:  Id.,  sec.  3480.  Every 
nuisance  not  included  in  the  definition  of  the 
last  section  is  private:  Id.,  sec.  3481.  Nothing 
which  is  done  or  maintained  under  the  express 
authority  of  a  statute  can  be  deemed  a  nuisance: 
Id.,  sec.  3482.  Every  successive  owner  of  property 
who  neglects  to  abate  a  continuing  nuisance  upon 
or  in  the  use  of  such  property,  created  by  a  for- 
mer owner,  is  liable  therefor  in  the  same  manner 
as  the  one  who  first  created  it:  Id.,  sec.  3483.  The 
abatement  of  a  nuisance  does  not  prejudice  the 
right  of  any  person  to  recover  damages  for  its  past 
existence:  Id.,  sec.  3484.  No  lapse  of  time  can 
legalize  a  public  nuisance  amounting  to  an  actual 
obstruction  of  public  right:  Id.,  sec.  3490.  A  pri- 
vate person  may  maintain  an  action  for  a  public 
nuisance,  if  it  is  specially  injurious  to  himself, 
but  not  otherwise:  Id.,  sec.  3493.  The  statute  does 
not  take  away  any  common-law  remedy  in  the 
abatement  of  nuisances,  but  see  sec.  18,  ante. 


^, 


§  732.  If  a  guardian,  tenant  for  life  or  years, 
'joint  tenant,  or  tenant  in  common  of  real  property, 
commit  waste  thereon,  any  person  aggrieved  by 
the  waste  may  bring  an  action  against  him  there- 
for, in  which  action  there  may  be  judgment  for 
treble   damages. 

Waste:   See  sec.  746;  enjoining,  see  sec.  745. 

Code  Civ.   Proc— 26. 


§§  733-735  ACTIONS  FOR  NUISANCE,   ETC.  302 

§  733.  Anj'  person  who  cuts  down  or  carries  off 
any  wood  or  underwood,  tree  or  timber,  or  girdles 
or  otherwise  injures  any  tree  or  timber  on  the  land 
of  another  person,  or  on  the  street  or  highway  in 
front  of  any  person's  house,  village  or  city  lot,  or 
cultivated  grounds;  or  on  the  commons  or  public 
grounds  of  any  city  or  town,  or  on  the  street  or 
highway  in  front  thereof,  without  lawful  author- 
ity, is  liable  to  the  owner  of  such  land,  or  to  such 
city  or  town,  for  treble  the  amount  of  damages 
which  may  be  assessed  therefor,  in  a  civil  action, 
in  any  court  having  jurisdiction. 

§  734.  Nothing  in  the  last  section  authorizes 
the  recovery  of  more  than  the  just  value  of  the 
timber  taken  from  uncultivated  woodland,  for  the 
repair  of  a  public  highway  or  bridge  upon  the 
laud,  or  adjoining  it. 

§  735.  If  a  person  recover  damages  for  a  forci- 
ble or  unlawful  entry  in  or  upon,  or  detention  of, 
any  building,  or  any  cultivated  real  property,  judg- 
ment may  be  entered  for  three  times  the  amount 
at  which  the  actual  damages  are  assessed. 

Forcible  entry  and  unlawful  detainer,  treble 
damages,  sec.  1174. 


CONFLICTING     CLAIMS.  §  738 


CHAPTER  III. 

ACTIONS  TO  DETERMINE  CONFLICTING  CLAIMS  TO 
REAL  PROPERTY,  AND  OTHER  PROVISIONS  RE- 
LATING TO  ACTIONS  CONCERNING  REAL  ESTATE. 

§  738.    Parties  to  an  action  to  quiet  title. 

§  739.     When  plaintiff  cannot  recover  costs. 

§  740.  If  plaintiff's  title  terminates  pending  the  suit,  what 
he  may  recover,  and  how  verdict  and  judgment  to 
be, 

§  741.  When  value  of  improvements  can  be  allowed  as  a 
setoff. 

§  742.  An  order  may  be  made  to  allow  a  party  to  survey 
and  measure  the  land  in  dispute. 

§  743.  Order,  what  to  contain,  and  how  served.  If  unnec- 
essary injury  done,  the  party  surveying  to  be  lia- 
ble  therefor. 

§  744-  A  mortgage  must  not  be  deemed  a  conveyance,  what- 
ever its  terms. 

§  745.  When  court  may  grant  injunction;  during  foreclo- 
sure, after  sale  on  execution,  before  conveyance. 

§  746.  Damages  may  be  recovered  for  injury  to  the  pos- 
session after  sale  and  before  delivery  of  possession. 

§  747.  Action  not  to  be  prejudiced  by  alienation,  pending 
suit. 

§  748.  Mining  claims,  actions  concerning  to  be  governed 
by  local  rules. 

g  789.  How  service  may  be  made  in  action  relating  to  real 
property. 

§  738.  An  action  may  be  brought  by  any  person 
against  another  who  claims  an  estate  or  interest 
in  real  property,  adverse  to  him,  for  the  purpose 
of  determining  such  adverse  claim;  provided,  how- 
ever, that  whenever  in  an  action  to  quiet  title  to, 
or  to  determine  adverse  claims  to,  real  property, 
the  validity  of  any  gift,  devise,  or  trust,  under  any 
will,  or  instrument  purporting  to  be  a  will,  whether 
admitted  to  probate  or  not,  shall  be  involved,  such 
will,  or  instrument  purporting  to  be  a  will,  is  ad- 
missible in  evidence;  and  all  questions  concerning 
the  validity  of  any  gift,  devise,  or  trust  therein 
contained,  save  such  as  under  the  constitution  be- 


§§  739-741  CONFLICTING    CLAIMS.  304 

long  exclusively  to  the  probate  jurisdiction,  shall 
be  finally  determined  in  such  action;  and  provided, 
however,  that  nothing  herein  contained  shall  be 
construed  to  deprive  a  party  of  the  right  to  a  jury 
trial  in  any  case  where,  by  the  law,  such  right  is 
now  given.  [Amendment,  approved  March  26, 
1895;  Stats.  1895,  72.    In  effect  immediately.] 

Obligations,  determining  claim  to:  Sec.  1050. 

Injunction:  Sec.  526. 

Parties:  Sees.  372,  379,  380,  381. 

§  739.  If  ihe  defendant  in  such  action  dis- 
claim in  his  answer  any  interest  or  estate  in  the 
property,  or  suffer  judgment  to  be  taken  against 
him  without  answer,  the  plaintiff  cannot  recover 
costs. 

Costs:  Sees.  1022  et  seq. 

§  740.  In  an  action  for  the  recovery  of  real 
property,  where  the  plaintiff  shows  a  right  to  re- 
cover at  the  time  the  action  was  commenced,  but 
it  appears  that  his  right  has  terminated  during 
the  pendency  of  the  action,  the  verdict  and  judg- 
ment must  be  according  to  the  fact,  and  the  plain- 
tiff may  recover  damages  for  Avithholding  the 
property. 

Pendency  of  action:  Sec.  1049. 

§  741.  When  damages  are  claimed  for  withhold- 
ing the  property  recovered,  upon  which  perma- 
nent improvements  have  been  made  by  a  defend- 
ant, or  those  under  whom  he  claims,  holding  under 
color  of  title  adversely  to  the  claim  of  the  plaintiff, 
in  good  faith,  the  value  of  such  improvements 
must  be  allowed  as  a  setoff  against  such  damages. 

Counterclnim. — Unless  defendant  sets  it  up,  it  is 
waived:  See  4.39.  Counterclaim  generally:  Sec. 
438. 


305  CONFLICTING  CLAIMS.  §§  742-745 

§  742.  The  court  in  which  au  action  is  pending 
for  the  recovery  of  real  property,  or  for  damages 
for  an  injury  thereto,  or  a  judge  thereof,  may,  on 
motion,  on  notice  by  eitlier  party,  for  good  cause 
shown,  grant  an  order  allowing  to  sucli  party  the 
right  to  enter  upon  the  property  and  malvc  survey 
and  measurement  thereof,  and  of  any  tunnels, 
shafts,  or  drifts  therein,  for  the  purpose  of  the 
action,  even  tliough  entry  for  such  purpose  has  to 
be  made  through  other  lands  belonging  to  parties 
to  the  action.  [Amendment,  approved  March  10, 
1880;  Amendments  1880,  11.  In  effect  March  10, 
1880.] 

Orders,  motions,  etc:  Sec.  1003  et  seq. 

§  743.  The  order  must  describe  the  property, 
and  a  copy  thereof  must  be  served  on  the  owner 
or  occupant;  and  thereupon  such  party  may  enter 
upon  the  property,  with  necessary  surveyors  and 
assistants,  and  make  such  survey  and  measure- 
ment; but  if  any  unnecessary  injury  be  done  to  the 
property,  he  is  liable  therefor. 

§  744.  A  mortgage  of  real  property  shall  not  be 
deemed  a  conveyance,  whatever  its  terms,  so  as  to 
enable  the  owner  of  the  mortgage  to  recover  pos- 
session of  the  real  property  without  a  foreclosure 
and  sale. 

Conveyance  deemed  mortgage:  Civil  Code,  sec. 
2925;  proof:  Civil  Code,  sec.  2925;  mortgagee's  pos- 
session: Civil  Code,  sec.  2927. 

§  745.    The  court  may  by   injunction,   on  good 
cause  shown,  restrain  the  party  in  possession  from 
doing  any  act  to  the  injury  of  real  property  dur 
ing  the  foreclosure  of  a  mortgage  thereon;  or,  after 
a  sale  on  execution,  before  a  conveyance. 

Injunction,  generally:  Sees.  525-533. 

Receiver:  Sec.  564,  subd.  2. 


§§  746-749  CONFLICTING    CLAIMS.  306 

Waste:  Civil  Code,   sec.   2929. 
Foreclosure  of  mortgage:  Sec.  726. 
Execution  sales:  Sec.  G94  et  seq. 

§  746.  When  real  property  has  been  sold  on 
execution,  the  purchaser  thereof,  or  any  person 
who  may  have  succeeded  to  his  interest,  may,  after 
his  estate  becomes  absolute,  recover  damages  for 
injury  to  the  property  by  the  tenant  in  possession 
after  sale  and  before  possession  is  delivered  under 
the  conveyance. 

Lis  pendens:  Sec.  409. 

§  747.  An  action  for  the  recovery  of  real  prop- 
erty against  a  person  in  possession  cannot  be  prej- 
udiced by  any  alienation  made  by  such  person, 
either  before  or  after  the  commencement  of  the 
action. 

§  748.  In  actions  respecting  mining  claims, 
proof  must  be  admitted  of  the  customs,  usages,  or 
regulations  established  and  in  force  at  the  bar 
or  diggings  embracing  such  claim;  and  such  cus- 
toms, usages,  or  regulations,  w^hen  not  in  conflict 
with  the  laws  of  this  State,  must  govern  the  de- 
cision of  the  action. 

§  749.  Service  may  be  made  by  publication  in 
actions  relating  to  or  the  subject  of  which  is  real 
property  in  this  State,  when  any  defendant  has  or 
claims  any  adverse  interest  or  estate  therein,  and 
where  the  person  on  whom  the  service  is  to  be 
made  resides  outside  of  the  State,  or  cannot,  after 
due  diligence,  be  found  Avithin  the  State,  or  con- 
ceals himself  to  avoid  the  service  of  summons,  or 
is  a  foreign  corporation  having  no  managing  or 
business  agent,  cashier,  or  secretary  within  the 
Stale,  and  the  fact  appearing,  by  affidavit,  to  the 
satisfaction  of  the  court  or  judge  thereof,  and  it 


307  CONFLICTING    CLAIMS.  §  749 

also  appearing  by  siicli  affidavit  or  by  tlie  verified 
complaint  on  file  that  a  cause  of  action  exists 
against  the  defendant  in  respect  to  whom  the  ser- 
vice is  to  be  made,  or  that  he  is  a  necessary  or 
proper  party  to  the  action,  such  judge  may  make 
an  order  that  the  service  be  made  by  publication 
of  summons.  Service  by  publication  and  proof  of 
service  of  a  copy  of  the  summons  and  complaint 
in  actions  under  this  title  shall  be  sufficient,  if 
made  in  accordance  with  sections  four  hundred 
and  thirteen  and  four  hundred  and  fifteen  of  this 
Code.  [New  section  added  March  31,  1891;  Stats. 
1891,  278.] 


§  751  PARTITION  OF  REAL  PROPERTY.  308 

CHAPTEB  IV. 

ACTIONS  FOR  THE  PARTITION   OF  REAL  PROPERTY. 

§  752.    Who  may  bring  actions  for  partition. 

§  753.  Interests  of  all  parties  must  be  set  forth  in  the 
complaint. 

§  754.  Lien-holders  not  of  record  need  not  be  made  par- 
ties. 

§  755.    Plaintiff  must  file  notice  of  lis  pendens. 

§  756.  Summons  must  be  addressed  to  all  persons  interested 
in   the   property. 

§  757.    Unknown  parties  may  be  served  by  publication. 

§  758.    Answer  of  defendants,  what  to  contain. 

§  759.  The  rights  of  all  parties  may  be  ascertained  in  the 
action. 

§  760.     Partial    partition. 

§  761.  Lien-holders  must  be  made  parties,  or  a  referee  be 
appointed  to  ascertain  their  rights. 

§  762.  Lien-holders  must  be  notified  to  appear  before  the 
referee    appointed. 

§  763.  The  court  may  order  a  sale  or  partition,  and  ap- 
point  referees    therefor. 

§  734.  Partition  must  be  made  according  to  the  rights  of 
the  parties,   as  determined  by  the  court. 

§  765.     Referees  must  make  a  report  of  their  proceedings. 

§  763.  The  court  may  set  aside  or  affirm  report,  and  en- 
ter judgment  thereon.  Upon  whom  judgment  to 
be    conclusive. 

i  767.  Judgment  not  to  affect  tenants  for  years  to  the  whole 
property. 

§  768.  Expenses  of  partition  must  be  apportioned  among 
the  parties. 

§  769.  A  lien  on  an  undivided  interest  of  any  party  is  a 
charge  onlj--  on  the  share  assigned  to   such  party. 

§  770.  Estate  for  life  or  years  may  be  set  off  in  a  part  of 
the  property  not  sold,  when  not  all  sold. 

§  771.  Application  of  proceeds  of  sale  of  incumbered  prop- 
erty. 

§  772.  Party  holding  other  securities  may  be  required  first 
to   exhaust   them. 

§  773.     Proceeds  of  sale,   disposition  of. 

§  774.  When  paid  into  court,  the  cause  may  be  continued 
for  the  determination  of  the  claims  of  the  parties. 

8  775.     Sales  by  referees  must  be  at  public  auction. 

§  776.     The  court  must  direct  the  terms  of  sale  or  credit. 

§  777.     Referees  may  take  securities  for  purchase  money. 

§  778.  Tenants  whose  estate  has  been  sold  shall  receive 
compensation. 


?m  PARTITION  OP  REAL  PROPERTY.  §  752 

§  779.     The   court   may   fix    such    compensation. 

§  780.     The   court  must  protect  tenants   unknown. 

§  781.     The   court   must   ascertain   and   secure   the   value    of 

future  contingent  or  vested  interests. 
§  782.     Terms    of    sale    must    be   made    known    at    the    time. 

Lots  must  be  sold  separately. 
§  783.    Who  may  not  be  purchasers. 

§  784.     Referee  must  make  a  report  of  the  sale  to  the  court. 
§  785.    If  confirmed,  conveyances  may  be  executed. 
§  783.    Proceeding  if  a  lien-holder  become  a  purchaser. 
§  787.    Conveyance    must   be   recorded,    and    will    be    a    bar 

against  parties. 
§  788.    Proceds  of  sale  belonging  to  parties  unknown  must 

be  invested  for  their  benefit. 
§  789.    Investment  must  be  made  in  the  name  of  the  clerk 

of  the  county. 
§  790.    When   the   interests   of   the   parties   are   ascertained, 

securities   must  be  taken   in   their  names. 
§  791.     Duties  of  the  clerk  making  investments. 
§  792.     When    unequal    partition    is    ordered,    compensation 

may  be  adjudged  in  certain  cases. 
5  793.     The  share  of  an  infant  may  be  paid  to  his  guardian. 
§  794.     The  guardian   of  an   insane  person   may  receive  the 

proceeds  of  such  party's  interest. 
§  795.    A  guardian  may  consent  to  partition  without  action, 

and  execute  releases. 
S  796.    Costs  of  partition  a  lien  upon  shares  of  partners. 
§  797.    The  court,  by  consent,  may  appoint  a  single  referee. 
§  798.    Expenses  of  previous  litigation  for  common  benefit 

allowed. 
§  799.    Abstract  of  title  in  action  for  partition— when   cost 

of  allowed. 
§  800.    Abstract,  how  made  and  verified. 

§  801.    Interest  allowed  on  disbursements  made  under  direc- 
tion of  the  court. 

§  752.  When  several  cotenants  hold  and  are  in 
possession  of  real  property  as  parceners,  joint  ten- 
ants, or  tenants  in  common,  in  which  one  or  more 
of  them  have  an  estate  of  inheritance,  or  for  life 
or  lives,  or  for  years,  an  action  may  be  brouj^ht  by 
one  or  more  of  such  persons  for  a  partition  thereof 
according  to  the  respective  riglits  of  the  persons 
interested  therein,  and  for  a  sale  of  snch  property, 
or  a  part  thereof,  if  it  appear  that  a  partition  can- 
not be  made  without  great  prejudice  to  the  own- 
ers. 


§§  753-755        PARTITION  OF  REAL  PROPERTY.  310 

Partition  of  easements:  Civ.  Code,  see.  SOT. 
Parties:  Sees.  367-389. 
Intervention:  Sec.  387. 

§  753.  The  interests  of  all  persons  in  the  prop- 
erty, whether  such  persons  be  known  or  unknown, 
must  be  set  forth  in  the  complaint  specifically  and 
particularly,  as  far  as  known  to  the  plaintiff;  and 
if  one  or  more  of  the  parties,  or  the  share  or  quan- 
titj^  of  interest  of  any  of  the  parties,  be  unknown 
to  the  plaintiff,  or  be  uncertain  or  contingent,  or 
the  ownership  of  the  inheritance  depend  upon  an 
executory  devise,  or  the  remainder  be  a  contingent 
remainder,  so  that  such  parties  cannot  be  named, 
that  fact  must  be  set  forth  in  the  complaint. 

Complaint  in  partition— complaint  generally:  Sec. 
426;  parties,  sec.  754;  sees.  384,  387;  and  generally, 
sees.  367-389.  Unknown  persons,  use  of  fictitious 
names,  sec.  474;  and  as  to  summons:  See  sec.  756. 

Abstract  of  title— procured  before  suit:  Sec.  799. 

§  754.  No  person  having  a  conveyance  of  or 
claiming  a  lien  on  the  property,  or  some  part  of  it, 
need  be  made  a  party  to  the  action,  unless  such 
conveyance  or  lien  appear  of  record. 

§  755.  Immediately  after  filing  the  complaint  in 
the  Superior  Court,  the  plaintiff  must  record  in  the 
office  of  the  recorder  of  the  county  or  of  the  sever- 
al counties  in  which  the  property  is  situated,  a  no- 
tice of  the  pendency  of  the  action,  containing  the 
names  of  the  parties  so  far  as  known,  the  ob.i'ect  of 
the  action,  and  a  description  of  the  property  to  be 
affected  thereby.  From  the  time  of  filing  such 
notice  for  record,  all  persons  shall  be  deemed  to 
have  notice  of  the  pendency  of  tlie  action. 
[Amendment,  approved  INIarch  9,  1880;  Amend- 
ments 1880,  11.    In  effect  March  10,  1880.] 

Lis  pendens:  Sec.  409. 


311  PARTITION  OP  REAL  PROPERTY.         §§  756-758 

§  756,  The  summons  must  be  directed  to  all  the 
joiut  tenants  and  tenants  in  common,  and  all  per- 
sons having  any  interest  in,  or  any  liens  of  record 
by  mortgajje,  judgment,  or  otherwise,  upon  the 
property,  or  upon  any  particular  portion  thereof; 
and  generally,  to  all  persons  unknown  who  have  or 
claim  any  interest  in  the  property'. 

Summons  in  partition— generally:  Sees.  405-416; 
and  as  to  contents,  see  sec.  407. 

§  757.  If  a  party  having  a  share  or  interest  is 
unknown,  or  any  one  of  the  known  parties  reside 
out  of  the  State,  or  cannot  be  found  therein,  and 
such  fact  is  made  to  appear  by  affidavit,  the  sum- 
mons may  be  served  on  such  absent  or  unknown 
party  by  publication,  as  in  other  cases.  When 
publication  is  made,  the  summons,  as  published, 
must  be  accompanied  by  a  brief  description  of  the 
property  which  is  the  subject  of  the  action. 

Service  by  publication:  Sees.  412,  413. 

§  758.  The  defendants  who  have  been  person- 
ally served  with  the  summons  and  a  copy  of  the 
complaint,  or  who  have  appeared  without  such 
service,  must  set  forth  in  their  answers,  fully  and 
particularly,  the  origin,  nature,  and  extent  of  their 
respective  interests  in  the  property;  and  if  such  de- 
fendants claim  a  lien  on  the  property  by  mortgage, 
judgment,  or  otherwise,  they  must  state  the  origi- 
nal amount  and  date  of  the  same,  and  the  sum  re- 
maining due  thereon;  also  whether  the  same 
has  been  secured  in  any  other  way  or  not;  and,  if 
secured,  the  nature  and  extent  of  such  security, 
or  they  are  deemed  to  have  waived  their  right  to 
such  lien. 

Answer  in  partition— pleading  disbursements: 
See.  798;  answer  generally:  Sec.  437. 

Notice,  as  to  abstract  of  title:  Sec.  799. 


§§  759-761         PARTITION  OF  REAL  PROPERTY.  312 

§  759.  Tlie  rights  of  the  several  parties,  plain- 
tiff as  well  as  defendant,  may  be  put  in  issue, 
tried,  and  determined  in  such  action;  and  when  a 
sale  of  the  premises  is  necessary,  the  title  must  be 
ascertained  by  proof  to  the  satisfaction  of  the 
court,  before  the  judgment  of  sale  can  be  made; 
and  where  service  of  the  complaint  has  been  made 
by  publication,  lil^e  proof  must  be  required  of  the 
right  of  the  absent  or  unknown  parties,  before 
such  judgment  is  rendered;  except  that  where 
there  are  several  unknown  persons  having  an  in- 
terest in  the  property,  their  rights  may  be  consid- 
ered together  in  the  action,  and  not  as  between 
themselves. 

Final  judgment:  Sec.  766. 
Parties:  Sec.  .367  et  seq.;  Sec.  761. 
Intervention:  Sec.  387. 

§  760.  Whenever  from  any  cause  it  is,  in  the 
opinion  of  the  court,  impracticable  or  highly  incon- 
venient to  make  a  complete  partition,  in  the  first 
instance,  among  all  the  parties  in  interest,  the 
court  may  first  ascertain  and  determine  the  shares 
or  interest  respectively  held  by  the  original  co- 
tenants,  and  thereupon  adjudge  and  cause  a  parti- 
tion to  be  made,  as  if  such  original  cotenants  were 
the  parties  and  sole  parties  in  interest,  and  the 
only  parties  to  the  action,  and  thereafter  may  pro- 
ceed in  like  manner  to  adjudge  and  make  partition 
separately  of  each  share  or  portion  so  ascertained 
and  allotted,  as  between  those  claiming  under  the 
original  tenant  to  whom  the  same  shall  have  been 
so  set  apart,  or  may  alloAV  them  to  remain  ten- 
ants in  common  thereof,  as  they  may  desire. 

§  761.  If  it  appears  to  the  court,  by  the  certifi- 
cate of  the  county  recorder  or  county  clerk,  or  by 
the  sworn  or  verified  statement  of  any  person  wlio 


313  PARTITION  .OF  REAL  PROPERTY.       §§  762.  763 

may  have  examined  or  searched  the  records,  that 
there  are  outstandiug  lieus  or  incumbrances  of 
record  upon  such  real  property,  or  any  part  or 
portion  thereof,  which  existed  and  were  of  record 
at  tlie  time  of  the  commencement  of  tlie  action, 
and  the  persons  holdini?  such  liens  are  not  made 
]jarties  to  the  action,  the  court  must  either  order 
such  persons  to  be  made  parties  to  the  action, 
by  an  amendment  or  supplemental  complaint,  or 
a.ppoim:  a  referee  to  ascertain  whether  or  not  such 
liens  or  incumbrances  have  been  paid,  or  if  not 
paid,  what  amount  remains  due  thereon,  and  their 
order  among  the  liens  or  incumbrances  severally 
held  by  such  persons  and  the  parties  to  the  action, 
and  whether  the  amount  remaining  due  thereon 
has  been  secured  in  any  manner,  and  if  secured, 
the  nature  and  extent  of  the  security. 

§  762.  The  plaintiff  must  cause  a  notice  to  be 
served,  a  reasonable  time  previous  to  the  day  for 
appearance  befoj-e  the  referee  appointed  as  pro- 
vided in  the  last  section,  on  each  person  having 
outstanding  liens  of  record,  who  is  not  a  party 
to  the  action,  to  appear  before  the  referee  at  a 
specified  time  and  place,  to  make  proof,  by  his 
own  affidavit  or  otherwise,  of  the  amount  due  or  to 
become  due  contingently  or  absolutely  thereon. 
In  case  such  person  be  absent,  or  his  residence  be 
unl^nown,  service  may  be  made  by  publication,xor 
notice  to  his  agents,  under  the  direction  of  the 
court,  in  such  manner  as  may  be  proper.  The 
report  of  the  referee  thereon  must  be  made  to  the 
court,  and  must  be  confirmed,  modified,  or  set 
aside,  and  a  new  reference  ordered,  as  the  jus- 
tice of  the  case  may  require. 

§  763.    If  it  be  alleged  in  the  complaint  and  es- 
tablished by  evidence,  or  if  it  appear  by  the  evi- 
dence Avithout  such  allegation  in  the  complaint  to 
Code  Civ.  Proc— 27 


§  763.  PARTITION  OF  REAL  PROPERTY.  314 

the  satisfaction  of  the  court,  tliat  the  property 
or  any  part  of  it  is  so  situated  that  partition  can- 
not be  made  without  great  prejudice  to  the  owners, 
the  court  may  order  a  sale  thereof;  otherwise,  up- 
on the  requisite  proofs  being  made,  it  must  order  a 
partition  according  to  the  respective  rights  of  the 
parties  as  ascertained  by  the  court,  and  appoint 
three  referees  tlierefor,  and  must  designate  the 
portion  to  remain  undivided  for  the  owners  whose 
interests  remain  unljnown,  or  are  not  ascertained; 
provided,  that  when  the  site  of  an  incorporate 
city  or  town  is  included  within  the  exterior  bound- 
aries of  the  property  to  be  partitioned,  then,  on 
said  fact  being  established  by  evidence,  the  follow- 
ing proceedings  shall  be  had:  The  court  shall 
thereupon  direct  the  referees  to  survey  and  ap- 
praise the  entire  propertj'-  to  be  partitioned  by 
actual  lots  and  subdivisions  then  existing  in  the 
actual  possession  of  tlie  several  tenants  in  com- 
mon, exclusive  of  the  value  of  improvements  there- 
on, first  setting  apart  necessary  portions  of  the 
property  for  ways,  roads,  and  streets,  as  in  sec- 
tion seven  hundred  and  sixty-four  of  this  Code 
provided,  and  to  report  such  survey  and  separate 
appraisement  on  each  lot  and  subdivision  to  the 
court.  The  court  may  confirm,  change,  modify,  or 
set  aside  the  report  in  whole  or  in  part,  and  if 
necessary  appoint  new  referees.  When,  after  the 
final  confirmation  of  the  report  of  such  survey  and 
appraisement,  it  shall  appear  by  evidence  to  the 
satisfaction  of  the  court  that  an  equitable  parti- 
tion of  the  whole  property  is  impracticable,  and  a 
sale  of  the  site  of  such  city  or  town,  or  any  por- 
tion thereof,  will  be  for  the  best  interests  of  the 
owners  of  the  whole  property,  it  shall  order  a 
sale  thereof;  provided,  that  within  sixty  days 
thereafter  any  tenant  in  common,  or  tenants  in 
common,  having  improvements  erected  on  any 
town  or  city  lot  or  subdivision  included  in  such 


315  PARTITION  OF  REAL  PROPERTY.  §  733 

order  of  sale,  shall  have  the  prior  right  to  pur- 
chase the  same  at  such  appraised  valuation,  aud 
may  pay  into  court  the  amount  so  appraised  as  the 
value  thereof,  and  upon  such  payment  the  title 
shall  vest  in  such  purcliaser  or  purchasers,  and 
the  court  shall  cause  to  be  executed  by  said  ref- 
erees a  deed  for  such  lot  or  subdivision  in  fee  and 
in  severalty  to  such  purchaser  or  purchasers;  such 
further  proceedings  shall  then  be  had  as  to  the 
remainder  of  the  property,  and  the  money  so  paid 
to  the  court,  as  by  this  chapter  provided.  If,  dur- 
ing the  pendency  of  the  action,  any  of  the  parties 
die,  or  become  insane  or  otherwise  incompetent, 
the  proceedings  shall  not  for  that  cause  be  de- 
layed or  suspended,  but  the  attorney  who  has  ap- 
peared for  such  party  may  continue  to  represent 
such  interest;  and  in  case  Ruy  such  party  has  not 
appeared  by  an  attorney,  the  court  shall  appoint 
an  attorney  to  represent  the  interest  which  was 
held  by  such  party,  until  his  heirs  or  legal  repre- 
sentatives, or  successors  in  interest,  shall  have  ap- 
peared in  the  action;  and  an  attorney  so  appoint- 
ed shall  be  allowed  by  the  court  a  reasonable 
compensation  for  his  services,  which  may  be  taxed 
as  costs  against  the  share  or  interest  represented 
by  such  attorney,  aud  may  be  adjudged  a  lien 
thereon,  in  the  discretion  of  the  court.  [Amend- 
ment approved  April  12,  1880;  Amendments  1880, 
p.  59.    In  effect  April  12,  1880.] 

Sale,  order  of:  Sees.  770-795. 

Easements. — The  land  to  which  an  easement  is 
attached  is  called  the  dominant  tenement;  the  land 
upon  which  a  burden  oi-  servitude  is  laid  is  called 
the  servient  tenement:  Civ.  Code,  sec.  803.  In  case 
of  partition  of  the  dominant  tenement,  the  burden 
must  be  apportioned  according  to  the  division  of 
the  dominant  tenement,  but  not  in  such  a  way  as 
to  increase  the  burden  upon  the  servient  tenement: 
Id.,  sec.  807. 


§  764  PARTITION    OF    REAL    PROPERTY.  316 

Referees:  See  sec.  797. 
Modifying  decree:  See  sec.  766. 

§  764.  In  making  partition,  the  referees  must 
divide  the  property,  and  allot  the  several  portions 
thereof  to  the  respective  parties,  quality  and  quan- 
titj-  relatively  considered,  according  to  the  re- 
spective rights  of  the  parties  as  determined  by  the 
court,  pursuant  to  the  provisions  of  this  chapter, 
designating  the  several  portions  by  proper  land- 
marlvs,  and  may  emploj^  a  surveyor  with  the  nec- 
essary assistants  to  aid  them.  Before  mailing  par- 
tition or  sale,  the  referees  may,  whenever  it  will 
be  for  the  advantage  of  those  interested,  set  apart 
a  portion  of  the  property  for  a  way,  road,  or  street, 
and  tlie  portion  so  set  apart  shall  not  be  as- 
signed to  any  of  the  parties  or  sold,  but  shall  re- 
main an  open  and  public  way.  road,  or  street,  un- 
less the  referees  shall  set  the  same  apart  as  a  pri- 
vate way  for  the  use  of  the  parties  interested,  or 
some  of  them,  their  heirs  and  assigns,  in  which 
case  it  shall  remain  such  private  way.  When- 
ever the  referees  have  laid  out  on  any  tract  of 
land  roads  sufticient  in  the  judgment  of  said  ref- 
erees to  accommodate  the  public  and  private 
wants,  they  shall  report  that  fact  to  the  court,  and 
upon  the  confirmation  of  their  report  all  other 
roads  on  said  tract  shall  cease  to  be  public  high- 
ways. Whenever  it  shall  appear,  in  an  action  for 
partition  of  lands,  tliat  one  or  more  of  the  tenants 
in  common,  being  the  owner  of  an  undivided  in- 
terest in  the  tract  of  land  sought  to  be  partitioned, 
has  sold  to  another  person  a  specific  tract  by 
metes  and  bounds  out  of  the  common  land,  and 
executed  to  the  purchaser  a  deed  of  conveyance, 
purporting  to  convej'  the  whole  title  to  such  spe- 
cific tract  to  the  purchaser  in  fee  and  in  severalty, 
the  land  described  in  such  deed  shall  be  allotted 
and  set  apart  in  partition  to  such  purchaser,  his 


317  PARTITION    OF   REAL  PROPERTY.        §§  765-766 

heirs  or  assigns,  or  iu  such  other  manner  as  shall 
make  such  deed  etfectual  as  a  conveyance  of  the 
NN'hole  title  to  such  segregated  parcel,  if  such  tract 
or  tracts  of  land  can  be  so  allotted  or  set  apart 
without  material  injury  of  the  rights  and  interests 
of  the  other  coteuants  who  may  not  have  joined  in 
such  conveyance;  provided,  that  in  all  cases  the 
court  shall  direct  the  referees,  in  making  parti- 
tion of  land,  to  allot  the  share  of  each  of  the  par- 
ties owning  an  interest  in  the  whole  or  in  any  part 
of  the  premises  sought  to  be  partitioned,  and  to 
locate  the  share  of  each  cotenant,  so  as  to  em- 
brace as  far  as  practicable  the  improvements  made 
by  such  cotenant  upon  the  property,  and  the 
value  of  the  improvements  made  by  the  tenants  in 
common  must  be  excluded  from  the  valuation  in 
making  allotments,  and  the  land  must  be  valued 
without  regard  to  such  improvement,  in  case  the 
same  can  be  done  without  material  injury  to  the 
rights  and  interests  of  the  other  tenants  in  com- 
mon osruing  such  land.  [Amendment  approved 
April  3,  187G;  Amendments  1875-(3,  p.  96.  In  ef- 
fect sixty  days  after  passage.] 

§  765.  The  referees  must  make  a  report  of  their 
proceedings,  specifying  therein  the  manner  iu 
which  they  executed  their  trust,  and  describing 
the  property  divided,  and  the  shares  allotted  to 
each  party,  witli  a  particular  description  of  each 
share, 

§  766.  The  court  may  confirm,  change,  modify, 
or  set  aside  the  report,  and  if  necessary,  appoint 
new  referees.  Upon  the  report  being  confirmed, 
judgment  must  be  rendered  that  such  partition  be 
effectual  forever,  wliich  judgment  is  binding  and 
conclusive: 

1.  On  all  persons  named  as  parties  to  the  ac- 
tion, and  tlieir  legal  representatives,  who  have  at 
the  time  any  interest  iu  the  property  divided,  or 


§§  767,    768      PARTITION  OF  REAL  PROPERTY.  318 

anj'  part  thereof,  as  owners  in  fee  or  as  tenants 
for  life  or  for  years,  or  as  entitled  to  the  reversion, 
remainder,  or  the  inheritance  of  such  property,  or 
any  part  thereof,  after  the  determination  of  a  par- 
ticular estate  therein,  and  who  by  any  contin- 
gency may  be  entitled  to  a  beneficial  interest  in 
the  property,  or  who  have  an  interest  in  any  un- 
divided share  thereof,  as  tenants  for  years  or  for 
life; 

2.  On  all  persons  interested  in  the  property, 
who  may  be  unknown,  to  whom  notice  has  been 
given  of  the  action  for  partition  by  publication; 

3.  On  all  other  persons  claiming  from  such  par- 
ties or  persons,  or  either  of  them. 

And  no  judgment  is  invalidated  by  reason  of 
the  death  of  any  party  before  final  judgment  or 
decree;  but  such  judgment  or  decree  is  as  conclu- 
sive against  the  heirs,  legal  representatives,  or  as- 
signs of  such  decedent,  as  if  it  had  been  entered 
before  his  death. 

§  767.  The  judgment  does  not  affect  tenants  for 
years  less  than  ten,  to  the  whole  of  the  property 
which  is  the  subject  of  the  partition. 

§  768.  The  expenses  of  the  referees,  including 
those  of  a  surveyor  and  his  assistants,  when  em- 
ployed, must  be  ascertained  and  allowed  by  the 
court,  and  the  amount  thereof,  together  with  the 
fees  allowed  by  the  court,  in  its  discretion,  to  the 
referees,  must  be  apportioned  among  the  different 
parties  to  the  action,   equitably. 

Fees  of  referees:  See  sec.  102S. 

Section  280  of  the  old  Practice  Act,  which  came 
to  be  sec.  708  of  the  Code  of  Civil  Procedure,  was 
amended  during  the  session  of  1871-72,  and  amend- 
ments of  that  session  superseded  the  Codes,  as  fol- 
lows: 

The  expenses  of  the  referees,  including  those  of 


319  PARTITION    OF   REAL   PROPERTY.        §§  769-772 

a  surveyor  and  his  assistant  when  employed,  shall 
be  ascertained  and  allowed  by  the  court,  and  the 
amount  thereof,  tojiether  with  the  fees  allowed  by 
law  to  the  referees,  and  such  attorney's  fees  ex- 
pended for  the  common  benefit,  both  for  plaintiff 
and  defendants,  ns  the  Court  shall  deem  just  and 
proper,  shall  be  apportioned  amon.cc  the  different 
parties  to  the  action.  [Amendment  of  March  4th, 
1872.     Stat.  1871-72,  p.  230.] 

§  769.  AYhen  a  lien  is  on  an  undivided  interest 
or  estate  of  any  of  the  parties,  such  lien,  if  a  parti- 
tion be  made,  shall  thenceforth  be  a  charge  only 
on  the  share  assigned  to  such  party;  but  such 
share  must  be  first  charged  with  its  just  propor- 
tion of  the  costs  of  the  partition,  in  preference  to 
such  lien. 

§  770.  When  a  part  of  the  property  only  is  or- 
dered to  be  sold,  if  there  be  an  estate  for  life  or 
years,  in  an  undivided  share  of  the  whole  proper- 
ty, such  estate  may  be  set  off  in  any  part  of  the 
property  not  ordered  to  be  sold. 

§  771.  The  proceeds  of  the  sale  of  incumbered 
property  must  be  applied  under  the  direction  of 
the  court,  as  follows: 

1.  To  pay  its  just  proportion  of  the  general  costs 
of  the  action; 

2.  To  pay  the  costs  of  the  reference; 

3.  To  satisfy  and  cancel  of  record  the  several 
liens  in  their  order  of  priority,  by  payment  of  the 
suras  due  and  to  become  due;  the  amount  due  to 
be  verified  by  affidavit  at  the  time  of  payment; 

4.  The  residue  among  the  owners  of  the  prop- 
erty sold,  according  to  their  respective  shares 
therein. 

§  772.  Whenever  any  party  to  an  action  who 
holds  a  lien  upon  the  property,  or  any  part  there- 
of,  lias  other  securities  for  the  payment  of  the 


§§  773-775        PARTITION   OF   REAL   PROPERTY.  320 

amount  of  siicli  lien,  the  court  may,  in  its  discre- 
tion, order  such  securities  to  be  exhausted  before  a 
distribution  of  the  proceeds  of  sale,  or  may  order 
a  just  deduction  to  be  made  from  the  amount  of 
the  lien  on  the  property,  on  account  thereof. 

§  773.  The  proceeds  of  sale  and  the  securities 
taken  by  tlie  referees,  or  any  part  thereof,  must  be 
distributed  hy  them  to  the  persons  entitled  there- 
to, whenever  the  court  so  directs.  But  in  case  no 
direction  be  given,  all  of  such  proceeds  and  se- 
curities must  be  paid  into  court,  or  deposited 
therein,  or  as  directed  by  the  court. 

Deposit  in  court:  Sees.  572-574,  2102. 

§  774.  When  the  proceeds  of  the  sale  of  any 
share  or  parcel  belonging  to  persons  who  are  par- 
ties to  the  action,  and  who  are  known,  are  paid 
into  court,  the  action  may  be  continued  as  be- 
tween such  parties,  for  the  determination  of  their 
respective  claims  thereto,  which  must  be  ascer- 
tained and  adjudged  by  the  court.  Further  testi- 
mony may  be  talvcn  in  court,  or  by  a  referee,  at 
the  discretion  of  the  court,  and  the  court  may, 
if  necessary,  require  such  parties  to  present  the 
facts  or  law  in  controversy',  by  pleadings,  as  in  an 
original  action. 

§  775.  All  sales  of  real  property,  made  by  ref- 
erees under  this  chapter,  must  be  made  at  public 
auction  to  the  highest  bidder,  upon  notice  publish- 
ed in  the  manner  required  for  the  sale  of  real 
property  on  execution.  The  notice  must  state  the 
terms  of  sale,  and  if  the  property  or  any  part  of  it 
is  to  be  sold  subject  to  a  prior  estate,  cliarge,  or 
lien,  that  must  be  stated  in  the  notice. 

Terms,  distinct  lots:  Sec.  782. 

Notice  of  execution  sales:  Sees.  692,  G93;  pro- 
ceedings,  sec.  694  et  seq. 


321  PARTITION  OF  REAL  PROPERTY.         §§  776-780 

§  776.  The  court  must,  in  the  order  for  sale, 
direct  the  terms  of  credit  which  may  be  allowed 
for  the  pnrciiase  money  of  any  portion  of  the 
premises  of  Avhich  it  may  direct  a  sale  on  credit, 
and  for  that  portion  of  which  the  purchase  money 
is  required,  by  the  provisions  hereinafter  con- 
tained, to  be  invested  for  the  benefit  of  unknown 
ownei*s,  infants,  or  parties  out  of  the  State. 

§  777.  The  referees  may  take  sejiarate  mort- 
gages and  other  securities  for  the  Avhole,  or  con- 
venient portions  of  the  purchase  money,  of  such 
parts  of  the  property  as  are  directed  by  the  court 
to  be  sold  on  credit,  for  the  shares  of  any  known 
owner  of  full  age,  in  the  name  of  such  owner;  and 
for  the  shares  of  an  infant,  in  the  name  of  the 
guardian  of  such  infant;  and  for  other  shares,  in 
the  name  of  the  clerk  of  the  county  and  his  suc- 
cessors in  office. 

§  778.  The  person  entitled  to  a  tenancy  for 
life,  or  years,  whose  estate  has  been  sold,  is  enti- 
tled to  receive  such  sum  as  may  be  deemed  a  rea- 
sonable satisfaction  for  such  estate,  and  which 
the  person  so  entitled  may  consent  to  accept  in- 
stead thereof,  by  an  instrument  in  writing,  tiled 
with  the  clerk  of  the  court.  Upon  the  filing  of 
such  consent,  the  clerk  must  enter  the  same  in  the 
minutes  of  the  court. 

§  779.  If  such  consent  be  not  given,  filed,  and 
entered,  as  provided  in  the  last  section,  at  or  be- 
fore a  .iudgment  of  sale  is  rendered,  the  court  must 
ascertain  and  determine  what  proportion  of  the 
proceeds  of  the  sale,  after  deducting  expenses, 
will  be  a  just  and  reasonable  sum  to  be  allowed 
on  account  of  such  estate;  and  must  order  the 
same  to  be  paid  to  such  party,  or  deposited  in 
court  for  him,  as  the  case  may  require. 

§  780.    If  the  persons  entitled  to  such  estate  for 


§§  781-785       PARTITION   OP   REAL   PROPERTY.  322 

life  or  3^ears  be  unknown,  the  court  must  provide 
for  tli,^  protection  of  tlieir  rights,  in  the  same 
manner,  as  far  as  may  be.  as  if  they  were  linown 
and  had  appeared. 

§  781.  In  all  cases  of  sales,  when  it  appears  that 
any  person  has  a  vested  or  contingent  future  right 
or  estate  in  any  of  tlie  property  sold,  the  court 
must  ascertain  and  settle  the  proportional  value  of 
such  contingent  or  vested  right  or  estate,  and  must 
direct  such  proportion  of  the  proceeds  of  the  sale 
to  be  invested,  secured,  or  paid  over,  in  such  man- 
ner as  to  protect  the  rights  and  interests  of  the 
parties. 

§  782.  In  all  cases  of  sales  of  property  the 
terms  must  be  made  i^nown  at  the  time;  and  if  the 
premises  consist  of  distinct  farms  or  lots,  they 
must  be  sold  separately. 

§  783.  Neither  of  the  referees,  nor  any  i^erson 
for  the  benefit  of  either  of  them,  can  be  interested 
in  any  purchase;  nor  can  a  guardian  of  an  infant 
partj^  be  interested  in  the  purchase  of  any  real 
property,  being  the  subject  of  the  action,  except 
for  the  benefit  of  the  infant.  All  sales  contrary  to 
the  provisions  of  this  section  are  void. 

§  784.  After  completing  a  sale  of  the  property, 
or  any  part  thereof  ordered  to  be  sold,  the  referees 
must  report  the  same  to  the  court,  with  a  de- 
scription of  the  different  parcels  of  land  sold  to 
each  purchaser;  the  name  of  the  purchaser;  the 
price  paid  or  secured;  the  terms  and  conditions  of 
the  sale,  nnd  the  securities,  if  any,  fallen.  The 
report  must  be  filed  in  the  office  of  the  clerk  of  the 
county  where  the  property  is  situated. 

§  785.  If  the  sale  be  confirmed  by  the  court,  an 
order  must  be  entered,  directing  the  referees  to 
execute  conveyances  and  take  securities  pursuant 
to  such  sale,  which  they  are  hereby  authorized  to 


323  PARTITION   OF   REAL   PROPERTY.       §§  786-790 

do.  SiK-li  Older  mny  mIso  .uivc  directions  to  tbem 
respecting  the  disposition  of  the  proceeds  of  the 
sale. 

§  786.  When  a  party  entitled  to  a  share  of  the 
property,  or  an  incumbrancer  entitled  to  have  his 
lien  paid  ont  of  the  sale,  becomes  a  purchaser,  the 
referees  may  talce  his  receipt  for  so  much  of  the 
proceeds  of  the  sale  as  belongs  to  him. 

§  787.  The  conveyances  must  be  recorded  in 
the  county  where  the  premises  are  situated,  and 
shaJl  be  a  bar  against  all  persons  interested  in  the 
property  in  any  way  who  shall  have  been  named 
as  parties  in  the  action,  and  against  all  such  par- 
ties and  persons  as  were  unknown,  if  the  sum- 
mons AA'as  served  by  publication,  and  against  all 
persons  claiming  under  them,  or  either  of  them, 
and  against  all  persons  having  unrecorded  deeds 
or  liens  at  the  commencement  of  the  action. 
[Amendment  approved  March  24,  1874;  Amend 
ments  1873-4,  p.  326.    In  effect  July  1,  1874.] 

§  788.  When  there  are  proceeds  of  a  sale  be- 
longing to  an  unknown  owner,  or  to  a  person 
without  the  State,  who  has  no  legal  representative 
within  it,  the  same  must  be  invested  in  bonds  of 
this  State  or  of  the  United  States,  for  the  benefit 
of  the  persons  entitled  thereto. 

§  789.  When  the  security  of  the  proceeds  of 
sale  is  taken,  or  when  an  investment  of  any  such 
proceeds  is  made,  it  must  be  done,  except  as  here- 
in otherwise  provided,  in  the  name  of  the  clerk 
of  the  county  where  the  papers  are  filed,  and  his 
successors  in  office,  who  must  hold  the  same  for 
the  use  and  benefit  of  the  parties  interested,  sub- 
ject to  the  order  of  the  court. 

§  790.  When  security  is  taken  by  the  referees 
on  a  sale,  and  the  parties  interested  in  such  secu- 
rity, by  an  instrument  in  writing,     under     their 


§§  791,  792       PARTITION   OF   REAL  PROPERTY.  324 

hands,  delivered  to  the  referees,  agree  upon  the 
shares  and  proportions  to  which  they  are  respect- 
ively entitled;  or  when  shares  and  proportions 
have  been  previously  adjudged  by  the  court,  such 
securities  must  be  taken  in  the  names  of,  and  pay- 
able to,  the  parties  respectively  entitled  thereto, 
and  must  be  delivered  to  such  parties  upon  their 
receipt  therefor.  Such  agreement  and  receipt  must 
be  returned  and  filed  with  the  clerk. 

§  791.  The  clerk  in  whose  name  a  security  is 
taken,  or  by  whom  an  investment  is  made,  and  his 
successors  in  ofllce,  must  receive  the  interest  and 
principal  as  it  becomes  due,  and  apply  and  invest 
the  same  as  the  court  may  direct;  and  must  de- 
posit with  the  county  treasurer  all  securities  taken, 
and  keep  an  account  in  a  book  provided  and  kept 
for  that  purpose,  in  the  cleric's  office,  free  for  in- 
spection by  all  persons,  of  investments  and  moneys 
received  by  liim  thereon,  and  the  disposition 
thereof. 

Deposit  in  court:  Sees.  572-574,  2104. 

§  792.  When  it  appears  that  partition  cannot 
be  made  equal  between  the  parties,  according  to 
their  respective  rights,  without  prejudice  to  the 
rights  and  interests  of  some  of  them,  and  a  parti- 
tion be  ordered,  the  court  may  adjudge  compen- 
sation to  be  made  by  one  party  to  another,  on 
account  of  the  inequality;  but  such  compensation 
shall  not  be  required  to  be  made  to  others  by  own- 
ers unknown,  nor  by  an  infant,  unless  it  appears 
that  such  infant  has  personal  property  sufficient 
for  that  purpose,  and  that  his  interest  will  be  pro- 
moted thereby.  And  in  all  cases,  the  court  has 
power  to  malce  compensatory  adjustment  between 
the  respective  parties,  according  to  the  ordinary 
principles  of  equity. 

Deposit  in  court:     Sees.  573,  2104. 


325  PARTITION   OF    REAL   PROPERTY.       §§  793-795 

§  793.  Wheu  the  share  of  an  infant  is  sold,  the 
proceeds  of  the  sale  may  be  paid  by  the  referee 
makinj^  the  sale,  to  his  general  guardian  or  the 
special  guardian  appointed  for  him  in  the  action, 
upon  giving-  the  security  required  by  law  or  di- 
rected by  order  of  the  court. 

General  gunrdian:    Sees.  1747-1809. 

Guardian  ad  litem,  generally:  Sees.  372,  373;  in 
partition,  limited  powers.  19  Cal.  210. 

§  794.  The  guardian  who  may  be  entitled  to  tlie 
custody  and  management  of  the  estate  of  an  in- 
sane person,  or  other  person  adjudged  incapable  of 
conducting  his  own  affairs,  whose  interest  in  real 
property  has  been  sold,  may  receive,  in  behalf  of 
such  person,  his  share  of  the  proceeds  of  such  real 
property  from  the  referees,  on  executing,  with 
sufficient  sureties,  an  undertaking,  approved  by  a 
judge  of  the  court,  that  he  will  faithfully  dis- 
charge the  trust  reposed  in  him,  and  will  render  a 
true  and  just  account  to  the  person  entitled,  or  to 
his  legal  representative.  [Amendment  approved 
March  10,  18S0;  Amendments  1880,  11.  In  effect 
March  10,  1880.] 

§  795.  The  general  guardian  of  an  infant,  and 
the  guardian  entitled  to  the  custody  and  manage- 
ment of  the  estate  of  an  insane  person,  or  other 
person  adjudged  incapable  of  conducting  his  own 
affairs,  who  is  interested  in  real  estate  held  in 
joint  tenancy,  or  in  common,  or  in  any  other  man- 
ner so  as  to  authorize  his  being  made  a  party  to 
an  action  for  the  partition  thereof,  may  consent 
lo  a  partition  without  action,  and  agree  upon  the 
sliare  to  be  set  off  to  such  infant  or  other  person 
entitled,  and  may  execute  a  release,  in  his  behalf, 
to  the  owners  of  the  shares,  of  the  parts  to  which 

Code   Civ.    Proc— 28. 


§§  796-798       PARTITION   OF   REAL  PROPERTY.  326 

they  may  be  respectively  entitled,  upon  an  order  of 
the  court. 

§  796.  The  costs  of  partition,  including  reason- 
able counsel  fees,  expended  by  the  plaintiff  or 
either  of  the  defendants,  for  the  common  benefit, 
fees  of  referees,  and  other  disbursements,  must  be 
paid  by  the  parties  respectively  entitled  to  share 
in  the  lands  divided,  in  proportion  to  their  respec- 
tive interests  therein,  and  may  be  included  and 
specified  in  the  judgment.  In  that  case,  they  shall 
be  a  lien  on  the  several  shares,  and  the  judgment 
may  be  enforced,  by  execution,  against  such 
shares,  and  against  other  property  held  by  the  re- 
spective parties.  When,  however,  litigation  arises 
between  some  of  the  parties  only,  the  court  may 
require  the  expense  of  such  litigation  to  be  paid 
by  the  parties  thereto,  or  any  of  them.  [Amend- 
ment approved  March,  24,  1874;  Amendments, 
1878-4,  326.    In  effect  July  1,  1874.] 

Keferees'  fees,  etc.:   Sec.  678;  sec.  1028. 

§  797.  The  court,  with  the  consent  of  the  par- 
ties, may  appoint  a  single  referee,  instead  of  three 
referees,  in  the  proceedings  under  the  provisions  of 
this  chapter;  and  the  single  referee,  when  thus 
appointed,  has  all  the  powers  and  may  perform  all 
the  duties  required  of  the  three  referees. 

Referees:    See  sec.  763,  ante. 

§  798.  If  it  appear  that  other  actions  or  pro- 
ceedings have  been  necessarily  prosecuted  or  de- 
fended by  any  one  of  the  tenants  in  common,  for 
the  protection,  confirmation,  or  perfecting  of  the 
title,  or  setting  the  boundaries,  or  mailing  a  sur- 
vey or  -surveys  of  the  estate  partitioned,  the  court 
shall  allow  to  the  parties  to  the  action  who  have 
paid  tlie  expense  of  such  litigation  or  other  pro- 


327  PARTITION   OF   REAL   PROPERTY.  §  799 

oeedings,  all  the  expenses  necessarily  incurred 
therein,  except  counsel  fees,  which  shall  have  ac- 
crued to  the  common  benefit  of  the  other  tenants 
in  common,  with  interest  thereon  from  the  date  of 
maliiug  the  said  expenditures,  and  in  the  same 
kind  of  money  expended  or  paid,  and  the  same 
must  be  pleaded  and  allowed  by  the  court  and  in- 
cluded in  the  final  judgment,  and  shall  be  a  lien 
upon  the  share  of  each  tenant,  respectively,  in  pro- 
portion to  his  interest,  and  shall  be  enforced  in  the 
same  manner  as  taxable  costs  of  partition  are 
taxed  and  collected.  [New  section  approved  Feb- 
ruary 4,  1876;  Amendments  1875-0,  97.  Approved 
February  4,  1876.] 

Section  798,  as  originally  passed,  Avas  repealed 
by  act  approved  March  24,  1874;  Amendments 
1873-4,  326;  tooli  effect  July  1,  1874.  In  was  after- 
wards, by  act  of  February  4,  1876,  Amendments 
1875-6,  97,  substantially  re-enacted  in  the  above. 
This  section,  as  originally  framed,  and  the  three 
following  sections,  were  added  by  the  act  of  April 
1,  1872. 

§  799.  If  it  appears  to  the  court  that  it  was 
necessary  to  have  made  an  abstract  of  the  title  to 
the  property  to  be  partitioned,  and  such  abstract 
shall  have  been  procured  by  the  plaintiff",  or  if  the 
plaintiff"  shall  have  failed  to  have  the  same  made 
before  the  commencement  of  the  action,  and  any 
one  of  the  defendants  shall  have  had  such  ab- 
stract afterward  made,  the  cost  of  the  abstract, 
with  interest  thereon  from  the  time  the  same  is 
subject  to  the  inspection  of  the  respective  parties 
to  the  action,  must  be  allowed  and  taxed.  When- 
ever such  abstract  is  produced  [procured?]  by  the 
plaintiff,  before  the  commencement  of  the  action, 
he  must  file  with  his  complaint  a  notice  that  an 
abstract  of  the  title  has  been  made,  and  is  subject 


§§  800,  801       PARTITION   OF   REAL  PROPERTY.  328 

to  the  inspection  and  use  of  all  the  parties  to  the 
fiction,  desiguatin.s:  therein  where  the  abstract  will 
be  kept  for  inspection.  But  if  the  plaintiff  shall 
have  failed  to  procure  such  abstract  before  com- 
mencing the  action,  and  any  defendant  shall  pro- 
cure the  same  to  be  made,  he  shall,  as  soon  as  he 
has  directed  it  to  be  made,  file  a  notice  thereof  in 
the  action,  with  the  Clerlv  of  the  Court,  stating 
who  is  making  the  same  and  where  it  will  be  kept 
when  finished.  The  court  or  the  judge  thereof 
may  direct,  from  time  to  time,  during  the  progress 
of  the  action,  who  shall  have  the  custody  of  the 
abstract. 

§  800.  The  abstract  mentioned  in  the  last  pre- 
ceding section  may  be  made  by  any  competent 
searcher  of  records,  and  need  not  be  certified  by 
the  recorder  or  other  offices,  but  instead  thereof, 
it  must  be  verified  by  the  affidavit  of  the  person 
making  it,  to  the  effect  that  he  believes  it  to  be 
correct;  but  the  same  may  be  corrected,  from  time 
to  time,  if  found  incorrect,  under  the  direction  of 
the  court. 

§  801.  Whenever,  during  the  progress  of  the 
action  for  partition,  any  disbursements  shall  have 
been  made,  under  the  direction  of  the  court,  or  the 
judge  thereof,  by  a  party  thereto,  interest  must  be 
allowed  thereon  from  the  time  of  making  such  dis- 
bursements. 


329  USURPATION   OF   OFFICE,    ETC.,      §§  802,  S03 

CHAPTER  V. 

ACTIONS    FOR   THE   USURPATION    OF   AN    OFFICE    OR 
FRANCHISE. 

§  802.     Certain  writs  abolished. 

§  803.  Action  may  be  brought  against  any  party  usurping, 
etc.,   any  office  or  franchise. 

§  804.  Name  of  person  entitled  to  office  may  be  set  forth 
in  the  complaint.  If  fees  have  been  received  by 
the  usurper,  he  may  be  arrested. 

§  805.  Judgment  may  determine  the  rights  of  both  incum- 
bent and  claimant. 

§  806.    When   rendered  in  favor  of  applicant. 

§  807.     Damages  may  be  recovered  by  successful  applicant. 

§  808.  When  several  persons  claim  the  same  office,  their 
rights  may  be  determined  by  a  single  action. 

§  809.  If  defendant  found  guilty,  what  judgment  to  be  ren- 
dered against  him. 

g  810.  Undertaking  when  action  brought  upon  infurniation 
of  private  property. 

§  802.  The  writ  of  scire  facias  is  abolished. 
[Amendment  approved  March  10,  1880;  Amend- 
ments 1880,  11.    In  effect  March  10,  1880.] 

Corporations,  dissolution  of.— By  the  Civil  Code, 
sees.  399,  400,  it  is  declared  that  the  dissolution  of 
corporations  is  provided  for,  if  involuntary,  by 
this  chapter  of  this  Code;  if  voluntary,  by  part  3, 
title  6,  sees.  1227-1233  of  this  Code;  and  that  un- 
less other  persons  are  appointed  by  the  court,  the 
directors  or  managers  of  tlie  affairs  of  such  corpo- 
ration at  the  time  of  its  dissolution  are  trustees 
of  the  creditors  and  stockliolders  or  members  of 
the  corporation  dissolved,  and  have  full  power  to 
settle  the  affairs  of  the  corporation.  As  to  a  re- 
ceiver, see  sec.  565. 

§  803.  An  action  may  be  brought  by  the  Attor- 
ney General,  in  tlie  name  of  the  people  of  this 
State,  upon  his  own  information,  or  upon  the  com- 
plaint of  a  private  party,  against  any  person  who 
usurps,  intrudes  into,  or  unlawfully  holds  or  exer- 


§  804  USURPATION  OF  OFFICE,   ETC.  330 

cises  auy  public  office,  civil  or  military,  or  any 
franchise  within  this  State.  And  the  Attorney 
General  must  bring  the  action,  whenever  he  has 
reason  to  believe  that  any  such  office  or  franchise 
has  been  usurped,  intruded  into,  or  unlawfully 
held  or  exercised  by  any  person,  or  when  he  is 
directed  to  do  so  by  the  Governor. 

Complaint:  Sec.  804;  security  by  relator:  Sec. 
810. 

Franchise— Civil  Code,  sec.  358;  dissolution  of 
corporations,  Civil  Code,  sees.  399,  400. 

Quo  warranto,  writ  of:   See  sec.  76,  subd.  5,  ante. 

Security  by  relator:    Sec.  810. 

Office,  title  to.— Contesting  elections:  Sees.  1111- 
1127. 

Mandamus:   Sec.  1085. 

§  804.  Whenever  such  action  is  brought,  the 
Attorney  General,  in  addition  to  the  statement  of 
the  cause  of  action,  may  also  set  forth  in  the  com- 
plaint the  name  of  the  person  rightly  entitled  to 
the  office,  with  a  statement  of  his  right  thereto; 
and  in  such  case,  upon  proof  by  affidavit  that  the 
defendant  has  received  fees  or  emoluments  belong- 
ing to  the  office,  and  by  means  of  his  usurpation 
thereof,  an  order  may  be  granted  by  a  Justice  of 
the  Supreme  Court,  or  a  judge  of  the  Superior 
Court,  for  the  aiTest  of  such  defendant  and  hold- 
ing him  to  bail;  and  thereupon  he  may  bo  arrested 
and  held  to  bail  in  the  same  manner,  and  with 
the  same  effect,  and  subject  to  the  same  rights 
and  liabilities,  as  in  other  civil  actions  where  the 
defendant  is  subject  to  arrest.  [Amendment  ap- 
proved March  10,  1880;  Amendments  1880,  11.  In 
effect  March  10,  1880.] 

Action— where  several  claimants:   Sec.  808. 

Arrest  and  bail:   Sec.  478  et  seq. 


331  USURPATION  OF  OFFICE, ETC.,  §?  803-809 

f  805.  In  every  such  action,  judgment  may  be 
rendered  upon  the  right  of  the  defendant,  and 
also  upon  the  right  of  the  party  so  alleged  to  be 
entitled,  or  only  upon  the  right  of  the  defendant, 
as  justice  may  require. 

Judgment:    Sec.  809. 

New  trial:    Sec.  1111  et  seq. 

§  806.  if  the  judgment  be  rendered  upon  the 
right  of  the  person  so  alleged  to  be  entitled,  and 
the  same  be  in  favor  of  such  person,  he  will  be 
entitled,  after  talking  the  oath  of  office,  and  exe- 
cuting such  official  bond  as  may  be  required  by 
law.  to  take  upon  himself  the  execution  of  the 
office. 

§  807.  If  judgment  be  rendered  upon  the  right 
of  the  person  so  alleged  to  be  entitled,  in  favor 
of  such  person,  he  may  recover,  by  action,  the 
damages  which  he  may  have  sustained  by  reason 
of  the  usurpation  of  the  office  by  the  defendant. 

Costs  and  fine:  Sec.  809. 

§  808.  When  several  persons  claim  to  be  en- 
titled to  the  same  office  or  franchise,  one  action 
may  be  brought  against  all  such  persons,  in  order 
to  try  their  respective  rights  to  such  office  or  fran- 
chise. 

§  809.  AVhen  a  defendant,  against  whom  such 
action  has  been  brought,  is  adjudged  guilty  of 
usurping  or  intruding  into,  or  unlawfully  holding 
any  office,  franchise,  or  privilege,  judgment  must 
be  rendered  that  such  defendant  be  excluded  from 
the  office,  franchise,  or  privilege,  and  that  he  pay 
the  costs  of  the  action.  The  court  may  also,  in  its 
discretion,  impose  upon  the  defendant  a  fine  not 
exceeding  five  thousand  dollars,  which  fine,  when 
collected,  must  be  paid  into  the  treasury  of  the 
State. 


§§  810,  813      ACTIONS   AGAINST   STEAMERS,    ETC.  332 

§  810.  When  the  action  is  brought  upon  the  in- 
formation or  application  of  a  private  party,  the 
Attorney  General  may  require  such  party  to  enter 
into  an  undertalcing,  with  sureties  to  he  approved 
by  the  Attorney  General,  conditioned  that  such 
party  or  the  sureties  will  pay  any  judgment  for 
costs  or  damages  recovered  against  the  plaintiff, 
and  all  the  costs  and  expenses  incurred  in  the 
prosecution  of  the  action.  [New  section  approved 
March  24,  1874;  Amendments  1873-4,  326.  In  ef- 
fect July  1,  1874.] 


CHAPTER  YI. 

OP    ACTIONS     AGAINST      STEAMERS,    VESSELS,    AND 
BOATS. 

§  813.  When  vessels,  etc.,  are  liable.  Their  liabilities  con- 
stitute  liens. 

8  814.  Actions  may  be  brought  directly  against  such  ves- 
sels, etc. 

§  815.     Complaint   must   be   verified. 

§  816.     Summons  may  be  served  on  the  master,  mate,  etc. 

§  817.    Plaintiff  may  have  such  vessel,  etc.,  attached. 

§  818.     The  clerk  must  issue  the  writ  of  attachment. 

$  819.  Such  writ  must  be  directed  to  the  sheriff.  Sheriff 
may  release  upon  sufficient  undertaking. 

]  820.     Sheriff  must  execute  such  writ  without  delay. 

§  821.  The  owner,  master,  etc.,  may  appear  and  defend 
such   vessel. 

S  822.     Proceedings   in   actions   under   this   chapter. 

§  823.  After  appearance,  attachment  may,  on  motion,  be 
discharged. 

5  824.  When  not  discharged  such  vessel,  etc.,  may  be  sold 
at  public  auction.       Application   of  proceeds. 

§  825.  Mariners  and  others  may  assert  their  claim  for 
wages,  notwithstanding  prior  attachment.  How 
enforced. 

!  826.    Proof  of  the  claims  of  mariners  and  others. 

§  827.  Sheriff's  notice  of  sale  to  contain  measurement,  ton- 
nage,   etc. 

§  813.    All  steamers,  vessels,  and  boats  are  lia- 
ble: 


333  ACTIONS    AGAINST    STEAMERS.    ETC.  §  814 

1.  For  services  rendered  on  board  at  the  request 
of,  or  on  contract  witb,  their  respective  owners, 
masters,  agents,  or  consignees; 

2.  For  supplies  furnished  in  this  State  for  their 
use,  at  the  request  of  their  respective  owners,  mas- 
ters, agents,  or  consignees; 

3.  For  worl^  done  or  materials  furnished  in  this 
State  for  their  construction,  repair,  or  equipment; 

4.  For  their  wharfage  and  ancliorage  within 
this  State; 

5.  For  nonperformance,  or  malperformance,  of 
any  contract  for  the  transportation  of  persons  or 
property  between  places  within  the  State,  made 
by  their  respective  owners,  masters,  agents,  or 
consignees; 

6.  For  injuries  committed  by  them  to  persons 
or  property  in  this  State. 

Demands  for  these  several  causes  constitute  liens 
upon  all  steamers,  vessels  and  boats,  and  have 
priority  in  their  order  herein  enumerated,  and 
have  preference  over  all  other  demands;  but  such 
liens  only  continue  in  force  for  the  period  of  one 
year  from  the  time  the  cause  of  action  accrued. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  327.     In  effect  July  1,  1874.] 

Seamen's  wages:    Sec.  114. 

Salvage,  Civil  Code,  sec.  2079. 

Preference  over  all  other  demands,  as  to  labor 
claims:     See  sees.  1204-1206. 

Liens,  generally:    Sec.  1180. 

Justices  of  the  peace  have  not  jurisdiction  where 
the  suit  on  proceeding  is  for  the  recovery  of  sea- 
men's wages  for  a  voyage  performed,  in  whole  or 
in  part,  without  the  waters  of  this  State:  Sec.  115, 
subd.  2. 

§  814.  Actions  for  any  of  the  causes  specified 
in  the  preceding  section  must  be  brought  against 


§§  815-818      ACTIONS  AGAINST  STEAMERS,  ETC.  334 

the  owners  by  name,  if  known,  but  if  not  known, 
that  fact  shall  be  stated  in  the  complaint,  and  the 
defendants  shall  be  designated  as  unknown  own- 
ers. Other  persons  having  a  lien  upon  the  vessel 
may  be  made  defendants  in  the  action,  the  nature 
and  amount  of  such  lien  being  stated  in  the  com- 
plaint. [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  328.     In  effect  July  1,  1874.] 

Unknown  owners— fictitious  designation  of:  Sec. 
474. 

Parties,  generally:    Sec.  367  et  seq. 

§  815.  The  complaint  must  designate  the  steam- 
er, vessel,  or  boat  by  name,  and  must  be  verified 
by  the  oath  of  the  plaintiff,  or  some  one  on  his 
behalf. 

Verification  of  pleadings:    Sec.  446. 

§  816.  The  summons  and  copy  of  the  complaint 
must  be  served  on  the  owners  if  they  can  be 
found;  otherwise,  they  may  be  served  on  the  mas- 
ter, mate,  or  person  having  charge  of  the  steamer, 
vessel  or  boat.  [Amendment  approved  March  10, 
1880;  Amendments  1880,  12.  In  effect  March  10, 
1880.] 

Service  of  summons,  generally:   Sec.  410  et  seq. 

§  817.  The  plaintiff,  at  the  time  of  issuing  the 
summons,  or  at  any  time  afterward,  may  have  the 
steamer,  vessel,  or  boat,  with  its  tackle,  apparel, 
and  furniture,  attached  as  security  for  the  sat- 
isfaction of  any  judgment  that  may  be  recovered 
in  the  action.  [Amendment  approved  March  24, 
1874;  Amendments  1873-4,  328.  In  ettect  July  1, 
1874.] 

Attachment  generally:    Sec.  537  et  seq. 

§  818.  The  Clerk  of  the  Court  must  issue  a 
writ  of  attachment  on  the  application  of  the  plain- 


335      ACTIONS  AGAINST  STEAMERS,  ETC.  819,  820 

tiff,  upon  receiving  a  written  undertaking  on  be- 
half of  the  plaintiff,  executed  by  two  or  more 
sufRcient  sureties,  to  the  effect  that  if  the  judg- 
ment be  rendered  in  favor  of  the  owner  of  the 
steamer,  vessel,  or  boat,  as  the  case  may  be,  he 
will  pay  all  costs  and  damages  that  may  be  award- 
ed against  him,  or  all  damages  that  may  be  sus- 
tained by  him  from  the  attachment,  not  exceeding 
the  sum  specified  in  the  undertaking,  which  shall 
in  no  case  be  less  than  five  hundred  dollars. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1874.  328.    In  effect  July  1,  1874.] 

Attachment  bond,  generally,  compare  sec.  539. 

Qualifications  of  sureties:    Sec.  1057. 

§  819.  The  writ  must  be  directed  to  the  Sher- 
iff of  the  county  within  which  the  steamer,  vessel, 
or  boat  lies,  and  direct  him  to  attach  such  steam- 
er, vessel,  or  boat,  with  its  tackle,  apparel,  and 
furniture,  and  keep  the  same  in  his  custody  until 
discharged  in  due  course  of  law.  [Amendment 
approved  March  24,  1874;  Amendments  1873-4,  329. 
In  effect  July  1,  1874.] 

§  820.  The  Sheriff  to  whom  the  writ  is  directed 
and  delivered  must  execute  it  without  delay,  and 
must  attach  and  keep  in  his  custody  the  steamer, 
vessel,  or  boat  named  therein,  with  its  tackle,  ap- 
parel, and  furniture,  until  discharged  in  due 
course  of  law;  but  the  Sheriff  is  not  authorized  by 
any  such  writ  to  interfere  with  the  discharge  of 
any  merchandise  on  board  of  such  steamer,  vessel, 
or  boat,  or  with  the  removal  of  any  trunks  or 
other  property  of  passengers,  or  of  the  captain, 
mate,  seamen,  steward,  cook,  or  other  persons  em- 
ployed on  board.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  329.  In  effect  July 
1,  1874.] 


§§  821-824      ACTIONS  AGAINST  STEAMERS,   ETC.  336 

§  821.  The  ciwner,  or  the  master,  agent,  or  con- 
siiinee  of  the  steamer,  vessel,  or  boat,  may,  on 
behalf  of  the  owner,  appear  and  answer,  or  plead 
to  the  action;  and  may  except  to  the  sufficiency 
of  the  sureties  on  the  undertaking  filed  on  behalf 
of  the  plaintiff,  and  may  require  sureties  to  jus- 
tify, as  upon  bail  on  arrest.  [Amendment  ap- 
proved March  24.  1874;  Amendments  1873-4,  329. 
In  effect  July  1,  1874.] 

Appearance:  Sec.  1014. 

Answer:     Sec.  437. 

Justification  of  sureties:   Sec.  495. 

§  822.  After  the  attachment  is  levied,  the  own- 
er, or  the  master,  agent,  or  consignee  of  the  steam- 
er, vessel,  or  boat,  may,  on  behalf  of  the  owner, 
have  the  attachment  discharged,  upon  giving  to 
the  Sheriff  an  undertalving  of  at  least  two  suffi- 
cient sureties  in  an  amount  sufficient  to  satisfy  the 
demand  in  suit,  besides  costs,  or  depositing  that 
amount  with  the  Sheriff.  Upon  receiving  such 
undertaking  or  amount,  the  Sheriff  must  restore 
to  the  owner,  or  the  master,  agent,  or  consignee 
of  the  owner,  the  steamer,  vessel,  or  boat  attached. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  330.    In  effect  July  1,  1874.1 

Compare  see.  540;  undertakings,  see  sec.  818n. 

§  823.  After  the  appearance  in  the  action  of  the 
owner,  the  attachment  may,  on  motion,  also  be 
discharged,  in  the  same  manner,  and  on  lilce  terms 
and  conditions,  as  attachments  in  other  cases,  sub- 
ject to  the  provisions  of  sec.  825.  [Amendment 
approved  March  24,  1874;  Amendments  1873-4,  3.30. 
In  effect  July  1,  1874.] 

Discharge  of  attachment:    Sees.  554-558. 

§  824.  If  the  attachment  be  not  discharged,  and 
a  judgment  bo  recovered  in  the  action  in  favor  of 


337  ACTIONS  AGAINST  STEAMERS,   ETC.  §  825 

tlie  plaiutilif,  and  an  execution  be  issued  tliereon. 
the  Sheriff  must  sell  at  public  auction,  after  pub- 
lication of  notice  of  such  sale  for  ten  days,  the 
steamer,  vessel,  or  boat,  with  its  tackle,  apparel, 
and  furniture,  or  such  interest  therein  as  may  be 
necessary,  and  must  apply  the  proceeds  of  the 
sale  as  follows: 

1.  When  the  action  is  brought  for  demands  oth- 
er than  the  wages  of  mariners,  boatmen,  and 
others  employed  in  the  service  of  the  steamer, 
vessel,  or  boat  sold,  to  the  payment  of  the  amount 
of  such  wages,  as  specified  in  the  execution; 

2.  To  the  payment  of  the  judgment  and  costs, 
including  his  fees; 

3.  He  must  pay  any  balance  remaining  to  the 
owner,  or  to  the  master,  agent,  or  consignee,  who 
may  have  appeared  on  behalf  of  the  owner,  of  if 
there  be  no  appearance,  then  into  court,  subject  to 
the  claim  of  any  party  or  parties  legally  entitled 
thereto.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  330.    In  effect  July  1,  1874.] 

Sale  on  execution,  generally:   Sec.  694  et  seq. 
Payment  into  court:    Sees.  572-574,  2104. 

§  825.  Any  mariner,  boatman,  or  other  person 
employed  in  the  service  of  the  steamer,  vessel,  or 
boat  attached,  who  may  wish  to  assert  his  claim 
for  wages  against  the  same,  the  attachments  being 
issued  for  other  demands  than  such  wages,  may 
file  an  affidavit  of  his  claim,  setting  forth  the 
amount  and  the  partictilar  service  rendered,  with 
the  Clerlv  of  the  Court,  and  thereafter  no  attach- 
ment can  be  discharged  upon  filing  an  undertak- 
ing, unless  the  amount  of  such  claim,  or  the 
amount  determined  as  provided  in  the  next  sec- 
tion, be  covered  thereby,  in  addition  to  the  other 
requirements;  and  any  execution  issued  against 
such  steamer,  vessel,  or  boat,  upon  judgment  re- 
Code  Civ.   Proc— 29 


§  826  ACTIONS  AGAINST  STEAMERS,  ETC.  338 

covered  thereafter,  must  direct  the  application  of 
the  proceeds  of  any  sale: 

1.  To  the  payment  of  the  amount  of  such  claims 
filed,  or  the  amount  determined  as  provided  in  the 
next  section,  which  amount  the  Clerk  must  insert 
in  the  writ; 

2.  To  the  payment  of  the  judgment  and  costs 
and  Sheriff's  fees;  and  must  direct  the  payment 
of  any  balance  to  the  owner,  master,  or  consignee 
who  may  have  appeared  in  the  action;  but  if  no 
appearance  by  them  be  made  therein,  it  must  di- 
rect a  deposit  of  the  balance  in  court. 

Preferred  claims,    for  wages,    etc.:    Sees.    1204- 
1206. 
Deposit  in  court:   Sees.  572  et  seq.,  2104. 

§  826.  If  the  claim  of  the  mariner,  boatman,  or 
other  person,  filed  with  the  Clerli  of  the  Court,  as 
provided  in  the  last  section,  be  not  contested  with- 
in five  days  after  notice  of  the  filing  thereof  by 
the  owner,  master,  agent,  or  consignee  of  the 
steamer,  vessel,  or  boat  against  which  the  claim 
is  filed,  or  by  any  creditor,  it  shall  be  deemed  ad- 
mitted; but  if  contested,  the  Clerk  must  indorse 
upon  the  affidavit  thereof  a  statement  that  it  is 
contested,  and  the  grounds  of  the  contest,  and 
must  immediately  thereafter  order  the  matter  to 
a  single  referee  for  his  determination,  or  he  may 
hear  the  proofs  and  determine  the  matter  him- 
self. The  judgment  of  the  Clerlv  or  referee  may 
be  reviewed  by  a  court  in  which  the  action  is 
pending,  or  a  judge  thereof,  immediately  after  the 
same  is  given,  and  the  judgment  of  the  court  or 
judge  shall  be  final.  On  the  review,  the  court  or 
judge  may  use  the  minutes  of  the  proofs  taken  by 
the  clerk  or  referee,  or  may  take  the  proofs  anew. 
[Amendment  approved  March  10,  1880;  Amend- 
ments 1880,  12.    In  effect  March  10,  1880.] 


339  ACTIONS  AGAINST  STEAMERS,  ETC.  §  827 

§  827.  The  notice  of  sale  published  by  the 
Sheriff  must  contaiu  a  statement  of  the  measure- 
ment and  tonnage  of  the  steamer,  vessel,  or  boat, 
and  a  general  description  of  her  condition. 


§  832  PLACE    OF   TRIAL   OF   ACTIONS.  340 

TITLE  XI. 

OF  PROCEEDINGS  IN  JUSTICES'  COURTS. 

Chapter  I.    Place  of  trial   of  actions    iu   Justices' 
Courts. 
II.    Manuer  of  commencing  actions  in  Jus- 
tices' Courts. 

III.  Pleadings  in  Justices'  Courts. 

IV.  Provisional      remedies      in      Justices' 

Courts. 
A'.    Judgment     by     default     in     Justices' 

Courts. 
VI.    Time  of  trial  and    postponements    in 

Justices'  Courts. 
VII.    Trials  in  Justices'  Courts. 
VIII.    Judgments  (other  than  by  default)  in 
Justices'  Courts. 

IX.  Executions  from  Justices*   Courts. 

X.  Contempts  in  Justices'  Courts. 
XI.    Dockets  of  justices. 

XII.    General    provisions    relating    to  Jus- 
tices' Courts. 

CHAPTER   I. 

PLACE  OF  TRIAL  OF  ACTIONS  IN  JUSTICES'  COURTS. 

§  832.  Actions,    in    what    township    or    city    may    be    com- 
menced. 

§  833.  Place  of  trial  may  be  changed  in   certain  cases. 

§  834.  Limitation  on  the  right  to  change. 

§  835.  To  what  court  transferred. 

§  836.  Proceedings  after   order  changing   place   of   trial. 

§  837.  Effect  of  an  order  changing  place  of  trial. 

§  838.  Transfer    of    cases    to    the    District    Court. 

§  832.    Actions  in  Justices'  Courts  must  be  com- 
menced, and,  subject  to  the  right  to  change  the 


341  PLACE   OF  TRIAL   OF  ACTIONS.  §  832 

phace  of  trial,  as  in  this  chapter  provided,  must 
be  tried: 

1.  If  there  be  no  justices'  court  for  the  town- 
ship or  city  in  wliich  the  defendant  resides — in  any 
city  or  township  of  the  county  in  which  he  resides; 

2.  When  two  or  more  persons  are  jointly,  or 
jointly  and  severally,  bound  in  any  debt  or  con- 
tract, or  otherwise  jointly  liable  in  the  same  ac- 
tion, and  reside  in  different  townships  or  different 
cities  of  the  same  county,  or  in  different  counties— 
in  the  township  or  city  in  which  any  of  the  per- 
sons liable  may  reside; 

3.  In  cases  of  injury  to  the  person  or  property — 
in  tlie  township  or  city  where  the  injury  was  com- 
mitted, or  where  the  defendant  resides; 

4.  If  for  the  recovery  of  personal  property,  or 
the  value  thereof,  or  damages  for  taking  or  de- 
taining the  same— in  the  township  or  city  in 
which  the  property  may  be  found,  or  in  which  the 
property  was  taken,  or  in  which  the  defendant  re- 
sides; 

5.  When  the  defendant  is  a  nonresident  of  the 
county— in  any  township  or  city  wherein  he  may 
be  found; 

6.  When  the  defendant  is  a  nonresident  of  the 
State— in  any  township  or  city  in  the  State; 

7.  When  a  person  has  contracted  to  perform  an 
obligation  at  a  particular  place,  and  resides  in  an- 
other county,  township,  or  city— in  the  township 
or  city  in  which  such  obligation  is  to  be  per- 
formed, or  in  which  he  resides;  and  the  township 
or  city  in  which  the  obligation  is  incurred  shall  be 
deemed  to  be  the  township  or  city  in  which  it  is 
to  be  performed,  unless  there  is  a  special  contract 
to  the  contrary; 

8.  When  the  parties  voluntarily  appear  an^ 
plead  without  summons— in  any  township  or  ciiy 
in  the  State; 


§§  833-835       PLACE  OP  TRIAL  OF  ACTIONS.  342 

9.  In  all  other  cases— in  the  township  or  city  in 
which  the  defendant  resides.  [Amendment  ap- 
proved March  24, -1874;  Amendments  1873-4,  331. 
In  effect  July  1,  1874.] 

Jurisdiction  of  Justices'  Courts:  Sees.  112-115, 
1)25. 

§  833.  The  court  may,  at  any  time  before  the 
trial,  on  motion,  change  the  place  of  trial  in  the 
following  cases: 

1.  When  it  appears  to  the  satisfaction  of  the 
justice  before  whom  the  action  is  pending,  by  affi- 
davit of  either  party,  that  such  justice  is  a  mat*^ 
ial  witness  for  either  party; 

2.  When  either  party  makes  and  tiles  an  affida- 
vit that  he  believes  that  he  cannot  have  a  fair  and 
impartial  trial  before  such  justice,  by  reason  of 
the  interest,  prejudice,  or  bias  of  the  justice; 

3.  When  a  jury  has  been  demanded,  and  either 
party  makes  and  files  an  affidavit  that  he  cannot 
have  a  fair  and  impartial  trial,  on  account  of  the 
bias  or  prejudice  of  the  citizens  of  the  township 
or  city  against  him; 

4.  When,  from  any  cause,  the  justice  is  dis- 
qualified from  acting; 

5.  When  the  justice  is  sick  or  unable  to  act. 
Change  of  venue,  generally:    Sec.  397  et  seq. 

§  834.  The  place  of  trial  cannot  be  changed,  on 
motion  of  the  same  party,  more  than  once,  upon 
any  or  all  the  grounds  specified  in  the  first,  second, 
and  third  subdivisions  of  the  preceding  section. 

§  835.  AYhen  the  court  orders  the  place  of  trial 
to  be  changed,  tlie  action  must  be  transferred  for 
trial  to  a  court  tLie  parties  may  agree  upon;  and  if 
they  do  not  so  agree,  then  to  another  justices' 
court  in  the  same  county. 


343  PLACE   OF  TRIAL  OF  ACTIONS.         §§  836-838 

§  836.  After  an  order  has  been  made,  transfer- 
ring the  action  for  trial  to  anotlier  court,  the  fol- 
lowing proceedings  must  be  had: 

1,  The  justice  ordering  the  transfer  must  im- 
mediately transmit  to  the  justice  of  the  court  to 
which  it  is  transferred,  on  payment  by  the  party 
applying  of  all  the  costs  that  have  accrued,  all 
the  papers  in  the  action,  together  with  a  certified 
transcript  from  his  docliet  of  the  proceedings 
therein; 

2.  Upon  the  receipt  by  him  of  such  papers,  the 
justice  of  the  court  to  which  the  case  is  trans- 
ferred must  issue  a  notice,  stating  when  and  where 
the  trial  will  take  place,  which  notice  must  be 
served  upon  the  parties  at  least  one  day  before 
the  time  fixed  for  trial. 

§  837.  From  the  time  the  order  changing  the 
place  of  trial  is  made  the  court  to  which  the  ac- 
tion is  thereby  transferred  has  the  same  jurisdic- 
tion over  it  as  though  it  had  been  commenced  in 
such  court. 

§  838.  The  parties  to  an  action  in  a  justices' 
court  cannot  give  evidence  upon  any  question 
which  involves  the  title  or  possession  of  real  prop- 
erty, or  the  legality  of  any  tax,  impost,  assessment, 
toll,  or  municipal  fine,  nor  can  any  issue  present- 
ing such  question  be  tried  by  such  court;  and  if 
it  appear,  from  the  answer  of  the  defendant,  veri- 
fied by  his  oath,  that  the  determination  of  the  ac- 
tion will  necessarily  involve  the  question  of  title 
or  possession  to  real  property,  or  the  legality  of 
any  tax,  impost,  assessment,  toll,  or  municipal 
fine,  the  justice  must  suspend  all  further  proceed- 
ings in  the  action  and  certify  the  pleadings,  and, 
if  any  of  the  pleadings  are  oral,  a  transcript  of  the 
same,  from  his  docket  to  the  Clerk  of  the  Superior 
Court  of  the  county;  and  from  the  time  of  filing 


§  839  COMMENCING   ACTIONS.  344 

such  pleadings  or  transcript  witli  tlie  cleric,  tlie  Su- 
perior Court  sliall  liave  over  tlie  action  the  same 
jurisdiction  as  it  it  had  been  commenced  therein; 
provided,  that  in  cases  of  forcible  entry  and  de- 
tainer, of  which  justices'  'courts  have  jurisdiction, 
any  evidence,  otherwise  competent,  may  be  given, 
and  any  question  properly  involved  therein  may 
be  determined.  [Amendment  approved  March  26, 
1880;  Amendments  1880,  18.  In  effect  March  26, 
1880.] 

Certifying  to  Superior  Court,  from  justices' 
courts  in  cities  and  counties:    See  sec.  92. 

Title  or  possession  of  realty  involved.    See  sec. 

112,  subd.  2. 

Legality  of  tax,  etc..    involved:    See    sec.    112, 
subd.  4. 
Forcible  entry  and  detainer,  jurisdiction  of:  Sec. 

113,  subd.  1. 

CHAPTER   II. 

MANNER    OF    COMMENCING    ACTIONS    IN    JUSTICES- 
COURTS. 

S  839.  Actions,  how  commenced. 

§  840.  Summons  may  issue  within   a  year. 

§  841.  Defendant  may  waive  summons. 

§  842.  Parties  may  appear  in  person  or  by  attorney. 

§  843.  When  guardian  necessary,   how  appointed. 

§  844.  Summons,    how   issued,    directed,   and   what   to   con- 
tain. 

§  845.  Time  for  appearance  of  defendant. 

§  846.  Alias  summons. 

§  847.  Same. 

§  848.  Summons,    limitation    upon   time   of   service. 

§  849.  Summons,  by  whom  and  how  served  and  returned. 

§  850.  Hour   for    appearance. 

§  839.  An  action  in  a  justice's  court  is  com- 
menced by  tiling  a  complaint.  [Amendment  ap- 
proved Marcli  11,  1876;  Amendments  1875-6,  98. 
In  effect  March  11,  1876.] 


345  COMMENCING   ACTIONS.  §§  840-843 

Actions,  iu  cities  aud  counties,  title,  etc. :   Sec.  89. 

Commencement  of  action.— Section  350,  limita- 
tions, and  sec.  405,  commencement  of  action  in 
other  courts,  correspond  with  this  section,  as 
amended.    Action,  when  pending:    Sec.  1049. 

Complaint  generally:    Sec.  426. 

Justices'  courts:   See  sees.  85,  ante  et  seq. 

Foes  payable  in  advance:    Sec.  91,  ante. 

§  840.  The  court  must  indorse  on  the  com- 
plaint tlie  date  upon  which  it  was  tiled,  and  at  any 
time  within  one  year  thereafter  the  plaintiff  may 
have  summons  issued. 

Issuance  of  summons,  generally:    Sec.  406. 

Payment  of  fees,  in  cities  and  counties:    Sec.  91. 

§  841.  At  any  time  after  the  complaint  is  tiled, 
the  defendant  may,  in  writing,  or  by  appearing 
and  pleading,  waive  the  issuing  of  summons. 

Waiver — compare  sec.  406. 

§  842.  Parties  in  justices'  courts  may  appear 
and  act  in  person  or  by  attorney;  and  any  person 
except  the  constable  by  whom  the  summons  or 
jury  process  Avas  served,  may  act  as  attorney. 

Justices'  court  practitioners:    Sec.  96. 

Attorneys,  generally:    Sec.  275  et  seq. 

§  843.  When  an  infant,  insane,  or  incompetent 
person  is  a  party,  he  must  appear,  either  by  his 
general  guardian  if  he  have  one,  or  by  a  guardian 
ad  litem  appointed  by  the  j  ustice.  When  a  guard- 
ian ad  litem  is  appointed  by  the  justice,  he  must 
be  appointed  as  follows: 

1.  If  the  infant,  insane,  or  incompetent  person 
be  plaintiff,  the  appointment  must  bo  made  before 
the  summons  is  issued,  upon  the  application  of  the 
infant,  if  he  be  of  the  age  of  fourteen  years;  if 


§  8-14  COMMENCING    ACTIONS.  346 

under  that  age,  or  if  insane  or  incompetent,  upon 
the  application  of  a  relative  or  friend; 

2.  If  the  infant,  insane,  or  incompetent  person 
be  defendant,  the  appointment  must  be  made  at 
the  time  the  summons  is  returned,  or  before  the 
answer,  upon  the  application  of  the  infant,  if  he 
be  of  the  age  of  fourteen  years,  and  apply  at  or 
before  the  summons  is  returned.  If  he  be  under 
the  age  of  fourteen,  or  be  insane  or  incompetent, 
or  neglect  so  to  apply,  then  upon  the  application 
of  a  relative  or  friend,  or  any  other  party  to  the 
action,  or  by  the  justice,  on  his  own  motion. 
[Amendment  approved  March  20,  1880;  Amend- 
ments 1880,  18.    In  effect  March  26,  1880.] 

Guardians— compare  sees.  372,  373. 

§  844.  The  summons  must  be  directed  to  the 
defendant  and  signed  by  the  justice,  and  must 
contain: 

1.    The  title  of  the  court,  name  of  the  county 
.         and  city  or  township  in  which  the  action  is  com- 
.   "^  menced,  and  the  names  of  the  parties  thereto; 
Q  "^     2.    A  sufficient  statement  of  the  cause  of  action 
^  -,    in  general  terms  to  apprise  the  defendant  of  the 
)^  ;^  nature  of  the  claim  against  him; 
J    ^     3.    A  direction  that  the  defendant  appear  and 
^     .  answer  before  the  justice,  at  his  office,  as  spec- 
^     xjyified  in  section  845  of  this  Code; 
5    ^      4.    In  an  action  arising  on  a  contract  for  the  re- 
!^  "^^covery  of  money  or  damages  only,  a  notice  that 
"^  (^  unless  the  defendant  so  appear  and  answer,  the 
J   V-plaintiff  will  take  judgment  for  the  sum  claimed 
^    ^  by  him  (stating  it); 

^  ^  5.  In  other  actions,  a  notice  that  tinless  defend- 
>i  ^  ant  so  appear  and  answer,  the  plaintiff  will  apply 
3  /§  to  the  court  for  the  relief  demanded.  If  the  plain- 
^  /^  tiff  has  appeared  by  attorney,  the  name  of  the  at- 
^  >vtorney     must     be  indorsed     upon     the  summons. 


347  COMMENCING  ACTIONS.  §§  845-848 

L Amendment  approved   March  2G,   1880;   Amend- 
ments, 1880,  19.    In  effect  March  26,  1880.] 
Contents  of  summons— compare  sec.  407. 

§  845.  The  time  specified  in  the  summons  for 
the  appearance  of  the  defendant  must  be  as  fol- 
lows: 

1.  If  an  order  of  arrest  be  indorsed  upon  the 
summons,  forthwith; 

2.  In  all  other  cases,  the  summons  must  con- 
tain a  direction  that  the  defendant  must  appear 
and  answer  the  complaint  within  five  days,  if  the 
summons  be  served  in  the  city  and  county,  town- 
ship, or  city,  in  which  the  action  is  brought;  with- 
in ten  days,  if  ^served  out  of  the  township  or  city; 
but  in  the  county  in  which  the  action  is  brought, 
and  within  twenty  days,  if  served  elsewhere. 
[Amendment  approved  March  20,  1880;  Amend- 
ments 1880,  19.    In  effect  March  26,  1880.] 

§  846.  If  the  summons  is  returned  without  be- 
ing served  upon  any  or  all  of  the  defendants,  the 
justice,  upon  the  demand  of  the  plaintiff,  may 
issue  an  alias  summons  in  the  same  form  as  the 
original,  except  that  he  may  fix  the  time  for  the 
appearance  of  the  defendant  at  a  period  not  to 
exceed  ninety  days  from  its  date. 

Alias  summons,  generally:    Compare  sec.  408. 

§  847.  The  justice  may,  within  a  year  from  the 
date  of  the  filing  of  the  complaint,  issue  as  many 
alias  summons  ps  may  be  demanded  by  the  plain- 
tiff. 

Alias  summons:    See  sec.  408. 

§  848.  The  summons  cannot  be  served  out  of 
the  county  of  the  Justice  before  whom  the  action 
is  brought,  except  when  the  action  is  brought  upon 


§  849  COMMENCING    ACTIONS.  348 

a  joint  contract  or  obligation  of  two  oi*  more  per- 
sons, who  reside  in  different  counties  and  tlie  sum- 
mons has  been  served  upon  the  defendant,  resi- 
dent of  the  county,  in  which  case  the  summons 
may  be  served  upon  the  otlier  defendant  out  of 
the  county;  and  except,  also,  when  an  action  is 
brought  against  a  party  who  has  contracted  to  per- 
form an  obligation  at  a  particular  place,  and  re- 
sides in  a  different  county,  in  which  case  sum- 
mons may  be  served  in  the  county  where  he  re- 
sides; and  except,  also,  where  an  action  is  brought 
for  injury  to  person  or  property,  and  the  defend- 
ant resides  in  a  different  county,  in  which  case 
summons  may  be  served  in  the  county  where  the 
defendant  resides.  [Amendment  approved  April 
3,  1876;  Amendments  1875-6,  98.] 

Process  of  justices'  courts— extent  of:  Sees.  94, 
106. 

§  849.  The  summons  may  be  served  by  a  Sher- 
iff or  constable  of  any  of  the  counties  of  this  State; 
provided,  that  when  a  summons  issued  by  a  jus- 
tice of  the  peace  is  to  be  served  out  of  the  county 
in  which  it  was  issued,  the  summons  shall  have 
attached  to  it  a  certificate,  vmder  seal,  by  the 
County  Clerk  of  such  county,  to  the  effect  that 
the  person  issuing  the  same  was  an  acting  justice 
of  the  peace  at  the  date  of  the  summons,  or  the 
summons  may  be  served  by  any  male  resident, 
over  the  age  of  eighteen  years,  not  a  party  to  tlie 
suit,  within  the  county  where  the  action  is  brought 
and  must  be  served  and  returned,  as  provided  in 
title  five,  part  two,  of  this  Code,  or  it  may  be 
served  by  publication;  and  sections  four  hundred 
and  thirteen  and  four  hundred  and  twelve,  so  far 
as  they  relate  to  the  publication  of  summons,  are 
made  .applicable  to  justices'  courts,  the  word  "jus- 
tice" being  substituted  for  the  word  "judge"  wher- 
rvor   the   latter   word   occurs.      [Amendment   ap- 


349  PLEADINGS.  §§  850,  851 

[n-oved  .Alai-cli  10,  18D1;  Stats.  1801,  51.  In  effect 
iiiULuxl  lately.] 

Maimer  of  service  and  return  of  summons  in  jus- 
tice court  in  San  Francisco:  See  post,  Appendix, 
p.  858. 

Publication,  service  by:  Sees.  412,  413. 

§  850.  When  all  the  parties  served  with  pro- 
cess shall  have  appeared,  or  some  of  them  have 
appeared,  and  the  remaining  defendants  have 
made  default,  the  justice  must  fix  a  day  for  the 
trial  of  said  cause,  and  notify  the  plaintiff  and  the 
defendants  who  have  appeared,  thereof.  The  par- 
ties are  entitled  to  one  hour  in  which  to  appear 
after  the  time  fixed  in  the  said  notice,  but  are  not 
bound  to  remain  longer  than  that  time,  unless  both 
parties  have  appeared,  and  the  justice,  being  pres- 
ent, is  engaged  in  the  trial  of  another  cause. 
[Amendment  approved  April  3,  1876;  Amend- 
ments 18T5-(3,  98.  In  effect  sixty  days  after  pas- 
sage.] 

Time  of  trial:    Sec.  873  et  seq. 

CHAPTER  III. 

PLEADINGS    IN   JUSTICES'    COURTS. 

§  851.  Form  of  pleadings. 

§  852.  Pleadings  in  Justices'  Courts. 

§  853.  Complaint    defined. 

§  854.  When  demurrer  to  complaint  may  be  put  in. 

§  855.  Answer. 

§  856.  If  the  defendant  omits  to  set  up  counterclaim. 

§  857.  When  plaintiff  may  demur  to  answer. 

§  8-58.  Proceedings    on    demurrer. 

§  859.  Amendment  of  pleadings. 

§  860.  Answer  or  demurrer  to  amend  pleadings. 

§  851.    Pleadings  in  justices'  courts: 
1.    Are  not  required  to  be  in  any  particular  form, 
but  must  be  such  as  to  enable  a  person  of  com- 
mon understanding  to  know  what  is  intended; 
Code  Civ.  Proc— 30. 


1852-855  PLEADINGS.  ^."^     3^0 

2.  May,  except  the  complaint,  be  oral  oi*  in  writ- 
ing; 

3.  Must  not  be  verified,  unless  otherwise  pro- 
vided in  this  title; 

4.  If  in  writing,  must  be  filed  witli  the  justice; 

5.  If  oral,  an  entry  of  their  substance  must  be 
made  in  tlie  docliet. 

Subdivision  3— verified  answer:  Sec.  112,  subd.  2, 
sec.  838. 

§  852.    The  pleadings  are: 

1.  The  complaint  by  the  plaintiff; 

2.  The  demurrer  to  the  complaint; 

3.  The  answer  by  the  defendant; 

4.  The  demurrer  to  the  answer. 
Abbreviations  and  numerals:   Sec.  186. 
Trial:    See  sees.  873  et  seq. 

List  of  pleadings— generally:    Sec.  422. 

§  853.  The  complaint  in  justices'  courts  is  a 
concise  statement,  in  writing,  of  the  facts  consti- 
tuting the  plaintiff's  cause  of  action;  or  a  copy  of 
the  account,  note,  bill,  bond,  or  instrument  upon 
which  the  action  is  based. 

Complaint— generally:    Sec.  426. 

§  854.    The  defendant  may,  at  any  time  before 
answering,  demur  to  the  complaint. 
Demurrer,  generally:   Sec.  430. 

§  855.  The  answer  may  contain  a  denial  of  any 
or  all  of  the  material  facts  stated  in  the  complaint, 
which  the  defendant  believes  to  be  untrue,  and 
also  a  statement,  in  a  plain  and  direct  manner,  of 
any  other  facts  constituting  a  defense  or  counter- 
claim, upon  which  an  action  might  be  brought  by 
the  defendant  against  the  plaintiff  in  a  justices* 
court. 

Answer,  generally:    Sec.  437. 


351      r:,  PLEADINGS.  2§  856-8" 

§  856.  If  the  defendant  omit  to  set  up  a  coun- 
ter-claim in  the  cases  mentioned  in  the  last  sec- 
tion, neither  he  nor  his  assignee  can  afterward 
maintain  an  action  against  the  plaintiff  tlierefor. 

Counter-claim  waived— generally :   Sec.  439. 

§  857.  When  the  answer  contains  new  matter 
in  avoidance,  or  constituting  a  defense  or  a  coun- 
ter-claim, the  plaintiff  may,  at  any  time  before  the 
trial,  demur  to  the  same  for  insufficiency,  stating 
therein  the  grounds  of  such  demurrer. 

Demurrer  to  answer — generally:    Sec.  443. 

§  858.  The  proceedings  on  demurrer  are  as  fol- 
lows: 

1.  If  the  demurrer  to  the  complaint  is  sustained, 
the  plaintiff  may,  within  such  time,  not  exceeding 
two  days,  as  the  court  allows,  amend  his  com- 
plaint; 

2.  If  the  demurrer  to  a  complaint  is  overruled, 
the  defendant  may  answer  forthwith; 

3.  If  the  demurrer  to  an  answer  is  sustained, 
the  defendant  may  amend  his  answer  within  such 
time,  not  exceeding  two  days,  as  the  court  may 
allow; 

4.  If  the  demurrer  to  an  answer  is  overruled, 
the  action  must  proceed  as  if  no  demurrer  had 
been  interposed. 

Proceedings  on  demurrer— compare  sees.  472,  636. 

§  859.  Either  party  may,  at  any  time  before  the 
conclusion  of  the  trial,  amend  any  pleading,  but 
if  the  amendment  is  made  after  the  issue,  and  it 
appears  to  the  satisfaction  of  the  court,  by  oath, 
that  an  adjournment  is  necessary  to  the  adverse 
party  in  consequence  of  such  amendment,  an  ad- 
journment must  be  grantf^d.  The  court  may  also, 
in  its  discretion,  when  an  adjournment  will  by  the 


860  PLEADINGS  852 

amendment  be  rendered  necessary,  require,  as  a 
condition  to  the  alloAvance  of  such  amendment, 
made  after  issue,  joined,  tlie  payment  of  costs  to 
the  adverse  party,  to  be  fixed  by  the  court,  not 
exceeding  twenty  dollars.  The  court  may  also,  on 
such  terms  as  may  be  just,  and  on  payment  of 
costs,  relieve  a  party  from  a  judgment  by  default 
taken  against  him  by  his  mistalve.  inadvertence, 
surprise,  or  excusable  neglect,  but  the  application 
for  such  relief  must  be  made  within  ten  days  af- 
ter the  entry  of  the  judgment  and  upon  an  affida- 
vit shoAving  good  cause  therefor. 

Amendment,  generally:  Sec.  473;  adjournment 
for:  Sec.  874,  subd.  2. 

§  860.  When  a  pleading  is  amended,  the  ad- 
verse party  may  answer  or  demur  to  it  Avithin  such 
time,  not  exceeding  two  days,  as  the  court  may 
allow. 

'IMme  to  plead— compare  sec.  432. 


353  PROVISIONAL    REMEDIES.  §  861 

CHAPTER  ly. 

PROVISIONAL    REMEDIES    IN    JUSTICES'    COURTS. 

Article    I.     Arrest  and   Bail. 
II.     Attachment. 
III.     Claim  and  Delivery  of  Personal  Property. 

ARTICLE  1. 

ARREST  AND  BAIL. 

§  861.     Order  of  arrest  and  arrest  of  defendant. 

§  862.    Affidavit   and   undertaking   for   order   of   arrest. 

§  833.  A  defendant  arrested  must  be  taken  before  the  jus- 
tice immediately. 

§  864.  The  officer  must  give  notice  to  the  plaintiff  of  ar- 
rest. 

§  865.     The  officer  must  detain  the  defendant. 

§  861.  An  order  to. arrest  the  defendant  may- 
be indorsed  on  a  summons  issued  by  tlie  justice, 
and  the  defendant  may  be  arrested  thereon  by  the 
Sheriff  or  Constable,  at  the  time  of  serving  the 
summons  and  brought  before  the  justice,  and 
tliere  detained  until  duly  discharged,  in  the  fol- 
lowing cases: 

1.  In  an  action  for  the  recovery  of  money  or 
damages,  on  a  cause  of  action  arising  upon  con- 
tract, express  or  implied,  when  the  defendant  is 
about  to  depart  from  the  State,  with  intent  to  de- 
fraud his  creditors; 

2.  In  an  action  for  a  fine  or  penalty,  or  for 
money  or  property  embezzled  or  fraudulently  mis- 
applied, or  converted  to  his  own  use  by  one  who 
received  it  in  a  liduciary  capacity; 

3.  When  the  defendant  has  been  guilty  of  a 
fraud  in  contracting  the  debt  or  incurring  the  ob- 
ligation for  wliich  the  action  is  brought; 


§§  832,   863  PROVISIONAL   REMEDIES.  354 

4.  When  the  defendant  has  removed,  concealed, 
or  disposed  of  his  property,  or  is  about  to  do  so, 
with  intent  to  defraud  his  creditors. 

But  no  female  can  be  arrested  in  any  action. 

Arrest  and  bail:    Sees.  478  et  seq. 

Mesne  and  final  process  of  justices'  courts  may 
be  issued  to  any  part  of  the  county:   Sec.  116. 

§  862.  Before  an  order  for  an  arrest  can  be 
made,  the  party  applying  must  prove  to  the  sat- 
isfaction of  the  justice,  by  the  affidavit  of  himself 
or  some  other  person,  the  facts  upon  which  the 
application  is  founded.  The  plaintitf  must  also 
execute  and  deliver  to  the  justice  a  written  un- 
dertakmg  in  the  sum  of  three  hundred  dollars, 
with  sufficient  sureties,  to  the  effect  that  the  plain- 
tiff will  pay  all  costs  that  may  be  adjudged  to  the 
defendant,  and  all  damages  which  he  may  sustain 
by  reason  of  the  arrest,  if  the  same  be  wrongful, 
or  without  sufficient  cause,. not  exceeding  the  sum 
specified  in  the  undertaliing.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  p. 
334.     In  effect  July  1,  1874.] 

Affidavit  and  undertaliing  for  arrest:  Compare 
sees.  481,  482. 

Qualification  of  sureties:  Sec.  1057. 

§  863.  The  defendant,  immediately,  upon  being 
arrested,  must  be  fallen  to  the  office  of  the  jus- 
tice who  made  the  order,  and  if  he  is  absent  or 
unable  to  try  the  action,  or  if  it  appears  to  him 
by  the  affidavit  of  defendant,  that  he  is  a  ma- 
terial witness  in  the  action,  the  officer  must  im- 
mediately talve  the  defendant  before  another  jus- 
tice of  the  township  or  city,  if  there  is  another, 
and  if  not,  then  before  the  justice  of  an  adjoin- 
ing township,  who  must  talce  jurisdiction  of  the 
action,  and  proceed  thereon,  as  if  the  summons 
had  been  issued  and  the  order  of  arrest  made  by 
him. 


355  PROVISIONAL    REMEDIES.  §§  864,  867 

§  864.  The  officer  making  the  arrest  must  im- 
mediately give  notice  thereof  to  the  plaintiff,  or  his 
attorney  or  agent,  and  indorse  on  the  summons, 
and  subscribe  a  certificate,  stating  the  time  of 
serving  the  same,  the  time  of  the  arrest,  and  of  his 
giving  notice  to  the  plaintiff. 

§  865.  The  officer  making  the  arrest  must  keep 
the  defendant  in  custody  until  he  is  discharged  by 
order  of  the  justice. 


ARTICLE  II. 

ATTACHMENT. 

§  866.    Writ  of  attachment  shall  issue  upon  affidavit. 

§  867.    Undertaking  on  attachment  must  be  required. 

§  868.  Writ  of  attachment,  substance  of.  Officer  may  take 
an  undertaking  instead   of  levying. 

I  869.  Certain  provisions  apply  to  all  attachments  in  Jus- 
tices' Courts. 

§  866.  A  writ  to  attach  the  property  of  the  de- 
fendant must  be  issued  by  the  justice  at  the  time 
of,  or  after  issuing  summons  and  before  answer, 
on  receiving  an  affidavit  by  or  on  behalf  of  the 
plaintiff,  showing  the  same  facts  as  are  required 
to  be  shown  by  the  affidavit  specified  in  section 
five  hundred  and  thirty-eight  of  this  Code. 

Attachment,  generally:  Sec.  537  et  seq. 

Mense  and  final  process  of  justices'  courts  may 
be  issued  to  any  part  of  the  county:  Sec.  116. 

§  867.  Before  issuing  the  writ,  the  justice  must 
require  a  written  undertaking  on  the  part  of  the 
plaintiff,  with  two  or  more  sufficient  sureties,  in 
a  sum  not  less  than  fifty,  nor  more  than  three 
hundred  dollars,  to  the  effect  that  if  the  defendant 
recover  judgment,  the  plaintiff*  will  pay  all  costs 
that  may   be  awarded  to  the  defendant,  and  all 


§§  868,  869  PROVISIONAL    REMEDIES.  356 

damages  wliieli  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  specitied  in  the 
undertaliing. 
Undertaking  on  attacliment,  generally:  Sec.  539. 

§  868.  The  writ  may  be  directed  to  the  sheriff 
or  any  constable  of  the  county,  or  the  sheriff  of 
any  otJier  county,  and  must  require  him  to  attach 
and  safely  keep  all  the  property  of  the  defendant 
within  his  county,  not  exempt  from  execution,  or 
so  much  thereof  as  may  be  sufficient  to  satisfy 
the  plaintiff's  demand,  the  amount  of  which  must 
be  stated  in  conformity  with  the  complaint,  un- 
less the  defendant  give  him  security,  by  the  un- 
dertaking of  two  sutiicient  sureties,  in  an  amount 
sufficient  to  satisfy  such  demand,  besides  costs; 
in  Avhich  case,  to  take  such  undertaking. 

Contents  of  writ:  Compare  sec.  540. 

§  869.  The  sections  of  this  Code  from  section 
five  himdred  and  forty-one  to  section  five  hun- 
dred and  fifty-nine,  both  inclusive,  are  applicable 
to  attachments  issued  in  justices'  courts,  the  word 
"constable"  being  substituted  for  the  word  "sher- 
iff," wlienever  the  writ  is  directed  to  a  constable, 
and  the  word  "justice"  being  substituted  for  the 
word  "judge." 

§§  541-559.  Sec.  541,  property  attachable.  Sees. 
542,  543,  property,  how  sheriff  attaches.  Sec.  544, 
garnishee's  liability.  Sec.  545,  examination  of  de- 
fendant and  garnishee.  Sec.  546,  inventory,  re- 
turn, etc.  Sec.  547,  perishables.  Sec.  548,  other 
property,  immediate  sale  of.  Sec.  549,  claim  by 
third  person.  Sec.  550,  realization  of  attached 
pro])erty  after  judgment  for  plaintiff'.  Sec.  551, 
collecting  balance  by  sheriff.  Sec.  552,  proceedings 
if  execution  unsatisfied.  Sec.  553,  effect  of  judg- 
ment for  defendant.  Sees.  554-558,  discharge  of 
attachment.  Sec.  559,  sheriff's  return,  lieleasing 
attachment. 


357  PROVISIONAL    REMEDIES.  §  870 

ARTICLE  111. 

TLAIM  AND  DELIVERY  OF  PERSONAL   PROPERTY. 
te£S2  $  70.    How  claim  and  delivery  enforced. 

§  870.  Ill  an  action  to  recover  poysession  of  per- 
sonal property,  the  plaintiff  may,  at  the  time  of 
issniug  summons,  or  at  any  time  thereafter  before 
answer,  claim  the  delivery  of  such  property  to 
liim;  and  tlie  sections  of  this  Code,  from  section 
five  hundred  and  ten  to  section  live  hundred  and 
twenty-one.  both  inclusive,  are  applicable  to  such 
claim  when  made  in  justices'  courts,  the  powers 
therein  given  and  duties  imposed  on  sheriffs  being 
extended  to  constables,  and  the  word  "Justice" 
substituted  for  "judge." 

Claim  and  delivery:  Sees.  509  et  seq. 

§§  510-521.  Sec.  510,  affidavit  for  claim  and  de- 
livery. Sec.  511,  requisition  for  sheriff  to  take 
property  claimed.  Sec.  512,  undertalving*  by  plain- 
tiff. Sec.  518,  exception  to  sureties  by  defendant. 
Sec.  514,  defendant  claiming  redelivery.  Sec.  515, 
justification  of  defendant's  sureties.  Sec.  516, 
qualifications  of  sureties.  Sec.  517,  breaking  open 
building,  etc.  Sec.  518,  property,  how  kept.  Sec. 
511),  claim  by  third  person.  Sec.  520,  sheriff  to  file 
notice,  affidavit,  etc.  Sec.  521  (repealed  March  24; 
took  effect  .Tuly  1,  1874). 


§§  871,  872  JUDGMENT    BY    DEFAULT.  358 

CHAPTER  V. 

JUDGMENT  BY   DEFAULT  IN  JUSTICES'   COURTS, 

§  871.    Judgment  when  defendant  fails  to  appear. 
§  872.    Judgment   against    defendant    on    demurrer. 

§  871.  If  the  defendant  fail  to  appear,  and  to 
ans^ver  or  demur  within  the  time  specified  in  the 
summons,  then,  upon  proof  of  service  of  summons, 
the  following  proceedings  must  be  had: 

1.  If  the  action  is  based  upon  a  contract,  and 
is  for  the  recovery  of  money,  or  damages  only,  the 
court  must  render  judgment  in  favor  of  plaintiff 
for  the  sum  specified  in  the  summons: 

2.  In  all  other  actions  the  court  must  hear  the 
evidence  offered  by  the  plaintitt,  and  must  render 
judgment  in  his  favor  for  such  sum  (not  exceed- 
ing the  amount  stated  in  the  summons)  as  appears 
by  such  evidence  to  be  just.  [Amendment  ap- 
proved April  17,  1880;  Amendments  1880,  p.  113. 
In  effect  xVpril  10,  1880.] 

Default  judgment,  generally:  Sec.  585. 

§  872.  In  the  following  cases  the  same  pro- 
ceedings must  be  had,  and  judgment  must  be  ren- 
dered in  like  manner,  as  if  the  defendant  had  fail- 
ed to  appear  and  answer  or  demur: 

1.  If  the  complaint  has  been  amended,  and  the 
defendant  fails  to  answer  it  as  amended,  within 
the  time  allowed  by  the  court: 

2.  If  the  demurrer  to  the  complaint  is  overruled, 
and  the  defendant  fails  to  answer  at  once; 

3.  If  the  demurrer  to  the  answer  is  sustained, 
and  the  defendant  fails  to  amend  the  answer 
within  the  time  allowed  by  the  court. 

Compare  sec,  858. 


359  "'.      ^ixIAL  AND  POSTPONEMENTS.       §§  873-875 


CHAPTER  VI. 

TIME  OF  TRIAL  AND  POSTPONEMENTS   IN  JUSTICES' 
COURTS. 

5   873.    Time  when  trial  must  be  commenced. 
I  874.    When  court  may,  of  its  own  motion,  postpone  trial. 
I  875.    Postponement  by   consent. 
§  876.    Postponement  upon  application  of  a  party. 
J  877.    No  continuance  for  more  than  ten  days  to  be  grant- 
ed, unless  upon  filing  of  undertaking. 

§  873.  Unless  postponed  as  provided  in  this 
chapter,  or  unless  transferred  to  another  court,  the 
trial  of  the  action  must  commence  at  the  expira- 
tion of  one  hour  from  the  time  specified  in  the  no- 
tice mentioned  in  section  850,  and  the  trial  must 
be  continued  without  adjournment  for  more  than 
twenty-four  hours  at  any  one  time,  until  all  the 
issues  therein  are  disposed  of.  [Amendment  ap- 
proved April  3,  1876;  Amendments  1875-6,  p.  98. 
In  effect  sixty  days  after  passage.] 

§  874.  The  court  may,  of  its  own  motion,  post- 
pone the  trial: 

1.  For  not  exceeding  one  day,  if,  at  the  time 
fixed  by  law  or  by  an  order  of  the  court  for  the 
trial,  the  court  is  engaged  in  the  trial  of  another 
action; 

2.  For  not  exceeding  two  days,  if,  by  an  amend- 
ment of  the  pleadings,  or  the  allowance  of  time  to 
make  such  amendment  or  to  plead,  a  postpone- 
ment is  rendered  necessary; 

3.  For  not  exceeding  three  days,  if  the  trial  is 
upon  issues  of  fact,  and  a  jury  has  been  de- 
manded. 

xVmendment  of  pleadings,  etc.:  See  sees.  858,  859. 

§  875.  The  court  may,  by  consent  of  the  parties, 
given  in  Avriting  or  in  open  court,  postpone  the 
trial  to  a  time  agreed  upon  by  the  parties. 


§  876  TRIAL    AND    POSTPONEMENTS.  360 

§  876.  The  trial  may  be  postponed  upon  the 
application  of  either  party,  for  a  period  not  ex- 
ceeding four  months: 

1.  The  party  mals;iug  the  application  must 
prove,  by  his  o^Yn  oath  or  otherwise,  that  he  can- 
not, for  want  of  material  testimony,  Avhich  he  ex- 
pects to  procure,  safely  proceed  to  trial,  and  must 
show  in  Avhat  respect  the  testimony  expected  is 
material,  and  that  he  has  used  due  diligence  to 
procure  it,  and  has  been  unable  to  do  so; 

2.  If  the  application  is  on  the  part  of  the  plain- 
tiff, and  the  defendant  is  under  arrest,  a  postpone- 
ment for  more  than  three  liours  discharges  the  de- 
fendant from  custody;  but  the  action  may  pro- 
ceed, notwithstanding,  and  the  defendant  is  sub- 
ject to  arrest  on  execution,  in  the  same  manner 
as  if  he  had  not  been  discharged; 

3.  If  the  application  is  on  the  part  of  a  defend- 
ant under  arrest,  before  it  can  be  granted  he 
must  execute  an  uudertaliing,  with  two  or  more 
suflicient  sureties,  to  be  approved  by,  and  in  a  sum 
to  be  fixed  by,  the  justice,  to  the  effect  that  he  will 
render  himself  amenable  to  the  process  of  the  court 
during  the  pendency  of  the  action,  and  to  such 
as  may  be  issued  to  enforce  the  judgment  therein; 
or  that  the  sureties  will  pay  to  the  plaintiff  the 
amount  of  any  judgment  which  he  may  recover 
in  the  action,  not  exceeding  the  amount  specified  in 
the  undertalving.  On  filing  the  undertalving  speci- 
fied in  this  subdivision,  the  justice  must  order  the 
defendant  to  be  discharged  from  custody; 

4.  The  party  making  the  application  must,  if 
required  by  the  adverse  party,  consent  that  the 
testimony  of  any  witness  of  such  adverse  party, 
who  is  in  attendance,  may  be  then  talcen  by  depo- 
sition before  the  justice,  and  that  the  testimony 
so  talxcn  may  be  read  on  the  trial,  witli  the  same 
effect,  and  subject  to  the  same  objections,  as  if  the 
witness  was  produced. 


361  TRIALS   IN   JUSTICES'   COURTS.       §§  877,  878 

But  ilie  court  mu3'  require  the  party  making  tlie 
applieatiou  to  state,  upou  aliidavit,  the  evideuee 
wliicli  lie  expects  to  obtain;  and  if  the  adverse 
partj'  tliereupoii  admit  tliat  sucli  evidence  Avould 
be  siiven,  and  that  it  be  considered  as  actually 
given  on  the  trial,  or  offered  and  overruled  as  im- 
proper, the  trial  must  not  be  postponed. 

Postponement,  generally:  Sec.  595;  costs  of,  sec. 
1020. 

Arrest  and  bail:  Sec.  478  et  seq. 

§  877.  No  adjournment  nmst,  unless  hy  con- 
sent, be  granted  for  a  period  longer  than  ten  days, 
upon  the  application  of  either  party,  except  upon 
condition  that  such  party  file  an  undertaking,  in 
an  amount  fixed  by  the  justice,  with  two  sureties, 
to  be  approved  by  the  justice,  to  the  effect  that 
they  will  pay  to  the  opposite  party  the  amount  of 
any  judgment  which  may  be  recovered  against 
the  party  applying,  not  exceeding  the  sum  spec- 
ified in  the  undertaking. 


CHAPTER  VTI. 

TRIALS    IN    JUSTICES'    COURTS. 

§  878.     Issue  defined,  and  the  different  kinds. 

§  879.     Issue  of  law,  how  raised. 

§  880.     Issue  of  fact,  how  raised. 

§  881.    Issue  of  law,   how  tried. 

§  882.    Issue  of  fact,  how  tried. 

§  883.    Jury,  how  waived. 

§  884.     Either   party   failing   to    appear,    trial    may    proceed 

at  request  of   other  party. 
§  885.     Challenges   to   jurors. 

§  886.     Manner   of  pleading   a  written   instrument. 
§  887.    If  a  copy  of  an  Instrument  be  filed,   signatures  will 

be  deemed  admitted,  unless  denied  under  oath. 

§  878.    Issues  arise  upon  the  pleadings  when  a 
fact  or  conclusion   of  law   is   maintained  by  the 
Code  Civ.  Proc.-.31. 


§§  879-883       TRIALS   IN   JUSTICES'    COURTS.  362 

one  party,  and  is  controverted  by  tbe  other.   They 
are  of  two  kinds: 

1.  Of  law;  and, 

2.  Of  fact. 

Compare  this  and  the  next  two  sections  with 

sections  588-590. 

§  879.  An  issue  of  law  arises  upon  a  demurrer 
to  the  complaint  or  answer,  or  to  some  part 
thereof. 

Same  as  sec.  589. 

§  880.    An  issue  of  fact  arises: 

1.  Upon  a  material  allegation  in  the  complaint 
controverted  by  the  answer;  and, 

2.  Upon  new  matter  in  the  answer,  except  an  is- 
sue of  law  is  joined  thereon. 

Same  as  sec.  590. 

§  881.    An  issue  of  law  must  be  tried  by  the 
court. 
Compare  sec.   591. 

§  882.  An  issue  of  fact  must  be  tried  by  a  jury, 
unless  a  jury  is  waived,  in  which  case  it  must  be 
tried  by  the  court. 

Compare  sec.  592. 

§  883.    A  jury  may  be  waived: 

1.  By  consent  of  parties,  entered  in  the  docket; 

2.  By  a  failure  of  either  party  to  demand  a 
jury  before  the  commencement  of  the  trial  of  anj 
issue  of  fact; 

a.    By  the  failure  of  either  party  to  appear  at 
the  time  fixed  for  the  trial  of  an  issue  of  fact. 
Waiter  of  jury:  Compare  sec.  G31. 


363  TRIALS    IN    JUSTICES'    COURTS.        §§  884-887 

§  884.  If  either  party  fails  to  appear  at  the 
time  tixed  for  trial,  the  trial  may  proceed  at  the 
request  of  the  adverse  party. 

Compare  sec.  594. 

§  885.  The  challenges  are  either  peremptory  or 
for  cause.  Each  party  is  entitled  to  three  per- 
emptory challenges.  Either  party  may  challenge 
for  cause  on  any  grounds  set  forth  in  section  six 
hundred  and  two.  Challenges  for  cause  must  be 
tried  by  the  justice. 

Challenges:  Compare  sees.  601,  602. 

§  886.  When  the  cause  of  action  or  counter- 
claim arises  upon  an  account  or  instrument  for  the 
payment  of  money  only,  the  court,  at  any  time  be- 
fore the  trial,  may,  by  an  order  under  his  hand, 
require  the  original  to  be  exhibited  to  the  inspec- 
tion of,  and  a  copy  to  be  furnished  to,  the  adverse 
party,  at  such  time  as  may  be  fixed  in  the  order; 
or,  if  such  order  is  not  obeyed,  the  account  or  in- 
strument cannot  be  given  in  evidence. 

Order  for  inspection:  Sec.  1000. 

§  887.  If  the  plaintiff  annex  to  his  complaint, 
or  file  with  the  justice  at  the  time  of  issuing  the 
summons,  the  original  or  a  copy  of  the  promissory 
note,  bill  of  exchange,  or  other  written  obligation 
for  the  payment  of  money,  upon  which  the  action 
is  brought,  the  defendant  is  deemed  to  admit  the 
genuineness  of  the  signatures  of  the  makers,  in- 
dorsers,  or  assignors  thereof,  unless  he  specifically 
denies  the  same  in  his  answer,  and  verify  the 
answer  by  his  oath. 

Compare  sees.  447,  853. 


§§  889,  890  JUDGMENTS.  364 


CHAPTER  VIII. 

JUDGMENTS    (OTHER    THAN    BY    DEFAULT)    IN    JUS- 
TICES'  COURTS. 

§  889.    Judgment  by  confession. 

§  890.  Judgment  of  dismissal  entered  in  certain  cases  with- 
out prejudice. 

§  891.    Judgment  upon  verdict. 

§  892.    Judgment  after  trial  by  the  court. 

§  893.    Judgment  when  the  defendant  is  subject  to  arrest. 

§  894.  If  the  sum  found  due  exceeds  the  jurisdiction  of  the 
justice,  the  excess  may  be  remitted. 

§  895.     Offer  to  compromise  before  trial. 

§  896.     Costs  may  be  included  in  the  judgment. 

§  897.    Abstract   of  judgment. 

§  898.  Abstract  may  be  filed  and  docketed  in  county  clerk's 
ofiice. 

§  899.    Effect  of  docketing. 

§  900.  Judgment  not  a  lien  unless  abstract  is  recorded  in 
the  recorder's  office. 

§  889.  Judgments  upon  confession  may  be  en- 
tered up  in  any  justices'  court  specified  in  the  con- 
fession. 

Confession  of  .indgment,  generally:  Sees.  1132- 
1135;  jurisdiction,  sec.  112,  subd.  6. 

§  890.  Judgment  that  the  action  be  dismissed, 
without  prejudice  to  a  new  action,  may  be  en- 
tered with  costs,  in  the  foUoAving  cases: 

1.  When  the  plaintiff  voluntarily  dismisses  the 
action  before  it  is  finally  submitted: 

2.  When  he  fails  to  appear  9^  the  time  specified 
in  the  summons,  or  at  the  time  to  which  the  ac- 
tion has  been  postponed,  or  within  one  hour  there- 
after; 

3.  When,  after  a  demurrer  to  the  complaint  has 
been  sustained,  the  plaintiff  fails  to  amend  it 
within  the  time  allowed  by  the  court; 

4.  When  it  is  objected  at  the  trial,  and  appears 
by  the  evidence,  that  the  action  is  brought  in  the 


365  JUDGMENTS.  §§  891-8S5. 

wrong  county,  or  township,  or  city;  but  if  the  ob- 
jection is  taken  and  overruled,  it  is  cause  only  of 
reversal  on  appeal,  and  does  not  otherwise  in- 
validate the  judgment;  if  not  talvcn  at  the  trial, 
it  is  waived. 
Dismissal:  Compare  sec.  581. 

§  891.  When  a  trial  by  jury  has  been  had, 
judgment  must  be  entered  by  the  justice,  at  once, 
in  conformity  with  the  verdict. 

Entry  of  judgment,  generally:  Sec.  664;  as  af- 
fecting appeal,   see  sec.   939. 

§  892.  When  the  trial  is  by  the  court,  judgment 
must  be  entered  at  the  close  of  the  trial. 

§  893.  The  judgment  in  justices'  courts  must 
be  entered  substantially  in  the  form  required  by 
section  six  hundred  and  sixty-seven  of  this  Code. 
AYhen  the  judgment  is  rendered  in  a  case  where 
the  defendant  is  subject  to  arrest  and  imprison- 
ment thereon,  the  fact  tnat  the  defendant  is  so 
subject,  must  be  stated  in  the  judgment.  [Amend- 
ment approved  March  24,  1874;  Amendments 
1873-4,  p.  334.     In  effect  July  1,  1874.] 

Final  process  may  be  issued  to  any  part  of  the 
county:  Sec.  106. 

§  894.  AYhen  the  amount  found  due  to  either 
party  exceeds  the  sum  for  which  the  justice  is 
authorized  to  enter  judgment,  such  party  may  re- 
mit the  excess,  and  judgment  may  be  rendered 
for  the  residue. 

Limit,  three  hundred  dollars:  Sec.  112. 

§  895.  If  the  defendant,  at  any  time  before  the 
trial,  offer,  in  writing,  to  allow  judgment  to  be 
taken  against  him  for  a  specified  sum,  the  plain- 


§§  896,  897  JUDGMENTS.  366 

t;£f  may  immediately  have  judgment  therefor,  with 
the  ccsts  then  accrued;  but  if  he  do  not  accept 
such  offer  before  the  trial,  and  fail  to  recover  in 
the  action  a  sum  in  excess  of  the  offer,  he  cannot 
recover  costs,  but  costs  must  be  adjudged  against 
him,  and,  if  he  recover,  be  deducted  from  his  re- 
covery. The  offer  and  failure  to  accept  it  cannot 
be  given  in  evidence  nor  affect  the  recovery,  other- 
wise than  as  to  costs.  [Amendment  approved 
March  2,  1S7S:  Amendments  1877-8,  p.  103.] 

Offer  to  compromise,  compare  sec.  997. 

§  896.  The  justice  must  tax  and  include  in  the 
judgment  the  costs  allowed  by  law  to  the  pre- 
vailing party. 

Percentage  in  San  Francisco:  See  post.  Appen- 
dix. 

§  897.  The  justice,  on  the  demand  of  a  party  in 
whose  favor  judgment  is  rendered,  must  give  him 
an  abstract  of  the  judgment  in  substantially  the 
following  form  (hlJing  blanks  according  to  the 
facts): 

State  of  California,  county,   (or  city  and 

county). ,  plaintiff,  v. ,  defendant.     In 

justices'  court,  before  ,  justice  of  the  peace, 

township  (or  city,  or  city  and  county), , 

18—  [inserting  date  of  abstract].  Judgment  en- 
tered for  plaintiff  (or  defendant),  for  $ ,  on  the 

day  of .    I  certify  that  the  foregoing  is  a 

correct  abstract  of  a  judgment  rendered  in  said 
action  in  my  court— or  (as  the  case  may  be)  in  the 

co\u*t  of ,  justice  of  the  peace,  as  appears  by 

his  docket,  now  in  my  possession,  as  his  successor 
in  office. ,  Justice  of  the  Peace.  [Amend- 
ment approved  March  10,  1880;  Amendments  1880, 
p.   10.     In  effect  March  20.  1880.] 


367  JUDGMENTS.  §§  898-900 

§  898.  The  abstract  may  be  filed  in  the  office 
of  the  county  clerk  of  the  county  in  which  the 
judgment  was  rendered,  and  the  judgment  docket- 
ed in  the  judgment  doclvet  of  the  Superior  Court 
thereof.  The  time  of  the  receipt  of  the  abstract 
by  the  clerlv  must  be  noted  by  him  thereon,  and 
entered  in  the  doclcet.  [Amendment  approved 
March  10.  1880:  Amendments  1880,  p.  20.  In  ef- 
fect March  26,  1880.] 

Docketing,  generally:  Sec.  671. 

ilecoiding  transcript:  Sec.  674. 

§  899.  From  the  time  of  docketing  in  the  coun- 
ty clerk's  office,  execution  may  be  issued  thereon 
by  the  county  clerlv  to  the  sheriff  of  any  county 
in  the  State,  other  than  the  county  in  wliich  the 
judgment  was  rendered,  in  the  same  manner  and 
witli  like  effect  as  if  issued  on  a  judgment  of  the 
Superior  Court.  [Amendment  approved  March  10, 
1880;  Amendments  1880,  p.  20.  In  effect  March 
26.  1880.] 

Execution,  generally:  Sec.  681  et  seq. 

Docketing:  Sec.  671. 

Recording:  Sec.  674. 

§  900.  A  judgment  rendered  in  a  justice's  court 
creates  no  lien  upon  any  lands  of  the  defendant, 
unless  such  an  abstract  is  filed  in  the  office  of  the 
recordei'  of  the  county  in  which  the  lands  are  sit- 
uated. When  so  filed,  and  from  the  time  of  filing, 
the  judgment  becomes  a  lien  upon  all  the  real 
property  of  the  judgment  debtor,  not  exempt  from 
execution,  in  such  county,  owned  by  him  at  the 
time,  or  which  he  may  afterward,  and  before  the 
lien  expires,  acquire.  The  Lien  continues  for  two 
years,  unless  the  judgment  be  previously  satisfied. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  p.  113.     In  effect  April  16,  1880.] 

Lien,  extent  and  duration  of,  compare  sec.  674. 


§§  901,  903  EXECUTIONS.  388 

CHAPTER  IX. 

EXECUTIONS    FROM    JUSTICES'    COURTS. 

§  901.  Execution  may  issue  at  any  time  within  five  years. 

§  902.  Execution,   contents  of. 

§  903.  Renewal   of   execution. 

§  904,  Duty  of  oflBcer  receiving  execution. 

§  905.  Proceedings    supplementary    to    execution. 

§  901.  Execiitioii  for  the  enforcement  of  a 
judgment  of  a  justice's  court  may  be  issued  by  the 
justice  who  entered  the  judgment,  or  his  succes- 
sor in  office,  on  the  application  of  the  party  enti- 
tled thereto,  at  any  time  within  five  years  from  the 
entry  of  judgment. 

Within  five  years,  generally:  Sec.  685. 

Execution,  generally.  Sec.  681  et  seq. 

Final  process  may  be  issued  to  any  part  of  the 
country:  Sec.  116. 

§  90.2.  The  execution  must  be  directed  to  the 
sheriff  or  to  a  constable  of  the  county,  and  must 
be  subscribed  by  the  justice  and  bear  date  the 
day  of  its  delivery  to  the  olficer.  It  must  intelli- 
gibly refer  to  the  judgment,  by  stating  the  names 
of  the  parties,  and  the  name  of  the  justice  before 
whom,  and  of  the  county  and  the  township  or  city 
where,  and  the  time  when,  it  was  rendered;  the 
amount  of  judgment,  if  it  be  for  money;  and,  if 
less  than  the  whole  is  due,  the  true  amount  due 
thereon.  It  must  contain,  in  lilvc  cases,  similar  di- 
rections to  the  sheriff  or  constable,  as  are  required 
by  the  provisions  of  title  nine,  part  two,  of  this 
Code,  in  an  execution  to  the  sheriff. 
Compare   sec.  681    et  seq. 

§  903.  An  execution  may,  at  the  request  of  the 
judgment  creditor,  be  renewed  before  the  expira- 


369  EXECUTIONS.  §§  904,  905 

tion  of  the  time  fixed  for  its  return,  by  the  word 
^'renewed,"  written  tliereon,  Avith  the  date  thereof, 
and  subscribed  by  tlie  justice.  Such  renewal  has 
the  effect  of  an  original  issue,  and  may  be  re- 
peated as  often  as  necessary.  If  an  execution  is 
returned  unsatisfied,  another  may  be  afterward 
issued. 

§  904.  The  sheritf  or  constable  to  whom  the 
execution  is  directed  must  execute  the  same  in  the 
same  manner  as  the  sheriff  is  required  by  the  pro- 
visions of  title  nine,  -part  two,  of  this  Code,  to 
proceed  upon  executions  directed  to  liim;  and  the 
constable,  when  the  execution  is  directed  to  him, 
is  vested  for  that  purpose  with  all  the  powers  of 
the  sheriff. 

Execution  of  writ,  compare  sec.  691  et  seq.; 
and  generally,  see  sec.  688  et  seq. 

See  ante,  sees,  681  et  seq. 

§  905.  The  sections  of  this  Code,  from  seven 
hundred  and  fourteen  to  seven  hundred  and  twen- 
ty-one, both  inclusive,  are  applicable  to  justices' 
courts,  the  word  "constable"  being  substituted,  to 
that  end,  for  the  word  "sheriff,"  and  the  word 
"justice"  for  the  word  "  judge." 

I'roceedings  supplementary  to  execution:  Sees. 
714-721. 


§§  906,  907  CONTEMPTS.  370 

CHAPTER  X. 

CONTEMPTS  IN  JUSTICES'  COURTS. 

§  906.  Contempts  a  justice  may  punish  for. 

§  907.  Proceedings  for  contempt. 

§  908.  Same. 

§  909.  Punishments  for   contempts. 

§  910.  The  conviction  must  be  entered  in  the  docket. 

§  906.  A  justice  may  pi^nish  as  for  contempt, 
persons  guilty  of  tlie  following  acts,  and  no  other: 

1.  Disorderly,  contemptuous,  or  insolent  be- 
havior toward  the  justice  while  holding  the  court, 
tending  to  interrupt  the  due  course  of  a  trial  or 
other  judicial  proceeding; 

2.  A  breach  of  the  peace,  boisterous  conduct, 
or  violent  disturbance  in  the  presence  of  the  jus- 
tice, or  in  the  immediate  vicinity  of  the  court  held 
by  him,  tending  to  interrupt  the  due  course  of  a 
trial  or  other  judicial  proceeding; 

3.  Disobedience  or  resistance  to  the  execution  of 
a  lawful  order  or  process,  made  or  issued  by  him; 

4.  Disobedience  to  a  subpoena  duly  served,  or 
refusing  to  be  sworn  or  to  answer  as  a  wit- 
ness: 

5.  Rescuing  any  person  or  property  in  the  cus- 
tody of  an  officer  by  virtue  of  an  order  or  process 
of  the  court  held  by  him. 

Contempts,  generally:  Sec.  1209  et  seq. 
Courts  and  judicial  officers,  powers  of:  Sec.  128; 
sees.  177-179. 

§  907.  When  a  contempt  is  committed  in  the 
immediate  view  and  presence  of  the  justice,  it 
rany  be  punished  summarily;  to  that  end  an  order 
must  be  made  reciting  the  facts,  as  they  occurred, 
and  adjudging  that  the  person  proceeded  against 


371  DOCKETS.  §§  908,  911 

is  thereby  guilty  of  contempt,  and  tliat  lie  be  pun- 
ished as  therein  prescribed. 
Compare  sec.  1211. 

§  908.  When  the  contempt  is  not  committed  in 
the  immediate  view  and  presence  of  the  justice,  a 
warrant  of  arrest  may  be  issued  by  such  justice, 
on  which  the  person  so  guilty  may  be  arrested  and 
brought  before  the  justice  immediately,  when  an 
opportunity  to  be  heard  in  his  defense,  or  excuse, 
must  be  given.  The  justice  may,  thereupon,  dis- 
charge him,  or  may  convict  him  of  the  offense. 

Compare  sec.  1211;  sec.  1212  et  seq. 

§  909.  A  justice  may  punish  for  contempts  by 
fine  or  imprisonment,  or  both;  such  fine  not  to 
exceed  in  any  case  one  hundred  dollars,  and  such 
imprisonment  one  day. 

§  910.  The  conviction,  specifying  particularly 
the  offense  and  the  judgment  thereon,  must  be  en- 
tered by  the  justice  in  his  docket. 


CHAPTER  XI. 

DOCKETS   OP  JUSTICES. 

§  911.    Docket,  what  to  contain. 

§  912.    Entries  therein  primary  evidence  of  the  facts. 

§  913.    An  index  to  the  docket  must  be  kept. 

§  914.  Dockets  must  be  delivered  by  justice  to  his  suc- 
cessor, or  to  county  clerk. 

§915.  Proceed  n GTS  when  office  becomes  vacant,  and  before 
a  successor  is  appointed. 

§  916.     Docket  of  another  justice— Creation  of  a  new  county. 

§  917.    Justice  is  successor  of  prior  holder. 

§  918.    Designation   of  succeeding  justice. 

§  911.    Every  justice  must  keep  a  book,  denom- 
inated a  "docket,"  in  which  he  must  enter: 


§911  DOCKETS.  372 

1.  The  title  of  every  action  or  proceeding; 

2.  The  object  of  the  action  or  proceeding;  and 
if  a  sum  of  money  be  claimed,  the  amount  thereof; 

3.  The  date  of  the  summons,  and  the  time  of  its 
return;  and  if  an  order  to  arrest  the  defendant  be 
made,  or  a  writ  of  attachment  be  issued,  a  state- 
ment of  the  fact; 

4.  The  time  when  the  parties,  or  either  of  them, 
appear,  or  their  nonappearance,  if  default  be 
made;  a  minute  of  the  pleadings  and  motions;  if 
in  writing,  referring  to  them;  if  not  in  writing,  a 
concise  statement  of  the  material  parts  of  the 
pleadings; 

5.  Every  adjournment,  stating  on  whose  appli- 
cation and  to  what  time; 

6.  The  demand  for  a  trial  by  jury,  when  the 
same  is  made,  and  by  whom  made,  the  order  for 
the  jury,  and  the  time  appointed  for  the  return  of 
the  jury  and  for  the  trial; 

7.  The  names  of  the  jurors  who  appear  and  are 
sworn,  and  the  names  of  all  witnesses  sworn,  and 
at  wliose  request; 

S.  The  verdict  of  the  jury,  and  when  received; 
if  Ihe  jury  disagree  and  are  discharged,  the  fact 
of  sucli  disagreement  and  discharge; 

9.  The  judgment  of  the  court,  specifying 
the  costs  included,  and  the  time  when  rendered; 

10.  The  issuing  of  the  execution,  when  issued 
and  to  whom;  the  renewals  thereof,  if  any,  and 
when  made,  and  a  statement  of  any  money  paid 
to  the  justice,  when  and  by  whom; 

11.  The  receipt  of  a  notice  of  appeal,  if  any  be 
given,  and  of  the  appeal  bond,  if  any  be  filed. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  p.  334.     In  effect  July  1,  1874.] 

Docket  in  cities  and  counties:  Sec.  93. 


373  DOCKETS.  §§  912-915. 

§  912.  The  several  particulars  of  the  last  sec- 
tion specified  must  be  eutered  under  the  title  of  the 
action  to  which  they  relate,  and  (unless  otherwise 
in  this  title  provided)  at  the  time  when  they  oc- 
cur. Such  entries  in  a  justice's  docket,  or  a  tran- 
script thereof,  certified  by  the  justice,  or  his  suc- 
cessor in  oftice,  are  prima  facie  evidence  of  the 
facts  so  stated.  [Amendment  approved  March  10, 
18S0;  Amendments  1880,  p.  20.  In  effect  March  26, 
1880.] 

Prima  facie  evidence:  Sec.  1833. 

§  913.  A  justice  must  Ivcep  an  alphabetical  in- 
dex to  his  docket,  in  which  must  be  entered  the 
names  of  the  parties  to  each  judgment,  with  a  ref- 
erence to  the  paj?e  of  entry.  The  names  of  the 
plaintiffs  must  be  entered  in  the  index,  in  the 
alphabetical  order  of  the  first  letter  of  the  fam- 
ily name. 

§  914.  Every  justice  of  the  peace,  upon  the  ex- 
piration of  his  term  of  office,  must  deposit  with  his 
successor  his  official  dockets  and  all  papers  filed 
in  his  office,  as  well  his  own  as  those  of  his  prede- 
cessors, or  any  other  which  may  be  in  his  custody 
to  be  kept  as  public  records. 

§  915.  If  the  office  of  a  justice  become  vacant 
by  his  deatli  or  removal  from  the  township  or  city, 
or  otlierwise.  before  his  successor  is  elected  and 
qualified,  the  docket  and  papers  in  possession  of 
such  justice  must  be  deposited  in  the  office  of  some 
other  justice  in  the  township,  to  be  by  him  deliv- 
ered to  the  successor  of  such  justice.  If  there  is 
no  other  justice  in  the  township,  then  the  docket 
and  papers  of  such  justice  must  be  deposited  in 
the  office  of  the  county  clerk  of  the  county,  to  be 
]>y  him  delivered  to  the  successor  in  office  of  the 
justice. 

Code  Civ.  Proc— 32. 


§§  916-918  DOCKETS.  374 

§  916.  Any  justice  with  whom  the  docket  of  his 
predecessor  or  of  another  justice  is  deposited,  has 
and  may  exercise  over  all  actions  and  proceedings 
entered  in  such  docket,  the  same  jurisdiction  as  if 
originally  commenced  before  him.  In  case  of  the 
creation  of  a  neAv  county,  or  the  change  of  the 
boundary  between  two  counties,  any  justice  into 
whose  hands  the  docket  of  a  justice  formerly  act- 
ing as  such  within  the  same  territory,  may  come, 
is,  for  the  purposes  of  this  section,  considered  the 
successor  of  such  former  justice. 

§  917.  The  justice  elected  to  fill  a  vacancy  is 
the  successor  of  the  justice  whose  office  became 
vacant  before  the  expiration  of  a  full  term.  When 
a  full  term  expires,  the  same  or  another  person 
elected  to  take  office  in  the  same  township  or  city, 
from  that  time  is  tlie  successor. 

§  918.  When  two  or  more  justices  are  equally 
entitled,  under  the  last  section,  to  be  deemed  the 
successors  in  office  of  the  justice,  a  judge  of  the 
Superior  Court  must,  by  a  certificate  subscribed 
by  him  and  filed  in  the  office  of  the  county  clerk, 
designate  which  justice  is  the  successor  of  a  jus- 
tice going  out  of  office,  or  whose  office  has  become 
vacant.  [Amendment  approved  March  10,  1880; 
Amendments  1880,  p.  20.  In  effect  March  26,  1880.] 


375  GENERAL    PROVISIONS.  §§  919-921 


CHAPTER  XII. 

GENERAL      PROVISIONS     RELATING     TO     JUSTICES' 
COURTS. 

§  919.  Justices  may  issue  subpoenas  and  final  process  to 
any  part  of  the  county. 

§  920.  Blanks  must  be  filled  in  all  papers  Issued  by  a  jus- 
tice,   except   subpoenas. 

§  921.  Justices  to  receive  all  moneys  collected  and  pay 
same  to  parties. 

§  922.  In  case  of  disability  of  justice  another  justice  may 
attend  on  his  behalf. 

§  923.    Justices  may  require  security  for  costs. 

§  924.    Who    entitled    to    costs. 

§  925.  What  provisions  of  Code  applicable  to  Justices' 
Courts. 

§  926.    Deposit   in   lieu   of   undertaking. 

§  919.  Justices  of  the  peace  may  issue  sub- 
poenas in  any  action  or  proceeding  in  the  courts 
held  by  them,  and  final  process  on  any  judgment 
recovered  therein,  to  any  part  of  the  county. 

Final  process,  to  any  part  of  the  county:  Sees. 
94,  lOG. 

§  920.  The  summons,  execution,  and  every 
other  paper  made  or  issued  by  a  justice,  except  a 
subpoena,  must  be  issued  without  a  blank  left  to 
be  filled  by  another,  otherwise  it  is  void. 

§  921.  Justices  of  the  peace  must  receive  from 
the  sheriff  or  constables  of  their  county,  all  moneys 
collected  on  any  process  or  order  issued  from  their 
courts  respectively,  and  must  pay  the  same,  and 
all  moneys  paid  to  them  in  their  official  capacity, 
over  to  the  parties  entitled  or  authorized  to  re- 
ceive them,  without  delay.  [Amendment  approved 
March  10,  1880;  Amendments  1880,  p.  20.  In  effect 
March  20,  1880.] 


§§  922-926  GENERAL   PROVISIONS.  376 

§  922.  Il  case  of  the  sickness  or  other  disabil- 
ity, or  necessary  absence  of  a  justice,  on  a  return 
of  a  summons,  or  at  tlie  time  appointed  for  a  trial, 
another  justice  of  the  same  township  or  citj  may, 
at  his  request,  attend  in  his  belialf,  and  thereupon 
is  vested  Avith  the  power,  for  the  time  being,  of  the 
justice  before  whom  the  summons  was  returnable. 
In  that  case,  the  proper  entry  of  the  proceedings 
before  the  attending  justice,  subscribed  by  him, 
must  be  made  in  the  docket  of  the  justice  before 
whom  the  summons  was  returnable.  If  the  case 
is  adjourned,  tlie  justice  before  whom  the  sum- 
mons was  returnable  may  resume  jurisdiction. 

§  923.  Justices  may,  in  all  cases,  require  a  de- 
posit of  money  or  an  undertaking,  as  security  for 
costs  of  court,  before  issuing  a  summons. 

Prepayment  of  fees:  Sec.  01. 

§  924.  The  prevailing  party  in  justices'  courts 
is  entitled  to  costs  of  the  action,  and  also  of  any 
proceedings  taken  by  him  in  aid  of  an  execution, 
issued  upon  any  judgment  recovered  therein. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  p.  335.    In  effect  July  1,  1874.] 

Costs:  See  sec.  896. 

§  925.  Justices'  courts  being  courts  of  peculiar 
and  limited  jurisdiction,  only  those  provisions  of 
this  Code  which  are,  in  their  nature,  applicable 
to  the  organization,  powers,  and  course  of  pro- 
ceedings in  justices'  courts,  or  which  have  been 
made  applicable  by  special  provisions  in  this  title, 
are  applicable  to  justices'  courts  and  the  proceed- 
ings therein. 

Teculiar  and  limited  jurisdiction:  Sees.  112-114. 

§  926,  In  all  civil  cases  arising  in  justices' 
courts,  wherein  an  undertaking  is  required  as  pre- 


377  CIVIL  ACTIONS  IN  POLICE   COURTS.    §§  929-931 

scribed  iu  this  Code,  the  plaintiff  or  defendant 
may  deposit  with  said  justice  a  sum  of  money  in 
United  States  gold  coin  equal  to  the  amount  re- 
quired by  the  said  undertalving,  which  said  sum 
of  money  shall  be  talcen  as  security  in  place  of 
said  undertaliing.  [New  section  approved  Febru- 
ary 25,  1878;  Amendments  1877-8,  p.  103.  In  effect 
sixty  days  after  passage.] 

TITLE  XII. 

PROCEEDINGS  IN  CIVIL  ACTIONS  IN  POLICE  COURTS. 

§  929.  How   commenced. 

§  930.  Summons  must  issue  on  filing  complaint. 

§  931.  Defendant  may  plead  orally  or  in  writing. 

§  932.  Trial  by  jury,  when  defendant  is  entitled  to. 

§  933.  Proceedings  to  be  conducted  as  in  Justices'  Courts. 

§  929.  Civil  actions  in  police  courts  are  com- 
menced by  filing  a  complaint,  setting  forth  the  vio- 
lation of  tlie  ordinance  complained  of,  with  such 
particulars  of  time,  place,  aud  manner  of  viola- 
tion as  to  enable  the  defendant  to  understand  dis- 
tinctly the  character  of  the  violation  complained 
of,  and  to  answer  the  complaint.  The  ordinance 
may  be  referred  to  by  its  title.  The  complaint 
must  be  verified  by  the  oath  of  the  party  com- 
plaining, or  of  his  attorney  or  agent. 

§  930.  Immediately  after  filing  the  complaint, 
a  summons  must  be  issued,  directed  to  the  defend- 
ant, and  returnable  either  immediately  or  at  any 
time  designated  therein,  not  exceeding  four  days 
from  the  date  of  its  issuing. 

§  931.  On  the  return  of  the  summons  the  de- 
fendant may  answer  tlie  complaint.  The  answer 
may  be  oral  or  in  writing,  and  immediately  there- 
after the  case  must  be  tried,  unless,  for  good 
cause  shown,  an  adjournment  is  granted. 


§§  932,  933     CIVIL  ACTIONS   IN   POLICE  COURTS.  378 

§  932.  Ill  all  actions  for  violation  of  an  ordi- 
nance, where  the  fine,  forfeiture,  or  penalty  im- 
posed by  the  ordinance  is  less  than  fifty  dollars, 
the  trial  must  be  by  the  court.  In  actions  where 
the  fine,  forfeiture,  or  penalty  imposed  by  the  or- 
dinance is  over  fifty  dollars,  the  defendant  is  en- 
titled to  a  trial  by  jury. 

§  933.  All  proceedings  in  civil  actions  in  police 
courts  must,  except  as  in  this  title  otherwise  pro- 
vided, be  conducted  in  the  same  manner  as  civil 
actions  in  justices'  courts. 

Civil  proceedings  in  justices'  courts:  Sees.  832- 
925. 


379  APPEALS    IN     GENERAL. 


TITLE  XIII. 

OF  APPEALS  IN  CIVIL  ACTIONS. 

Chapter  I.  Appeals  in  general. 

II.  Appeals  from  District  Courts. 

III.  Appeals  from  County  Courts. 

IV.  Appeals  from   Probate   Courts. 
V.  Appeals  to  County  Courts. 


CHAPTER  I. 
APPEALS    IN    GENERAL. 

§  936.    Judgment  and   orders  may  be  reviewed. 

§  937.  Orders  made  out  of  court,  without  notice,  may  be  re- 
viewed by  the  judge. 

§  938.    Party  aggrieved   may  appeal.    Names   of  parties. 

§  939.    Within  what  time  appeal  may  be  taken. 

§  940.    Appeal,  how  taken. 

§  941.    Appellant  must  file  undertaking  within  five   days. 

§  942.    Undertaking  on  appeal  from  a  money  judgment. 

§  943.    Appeal  from  a  judgment  for  delivery  of  documents. 

§  944.  Appeal  from  judgment  directing  execution  of  a 
conveyance,    etc. 

S  945.    Undertaking  on  appeal  concerning  real  property. 

§  946.  Stay  of  proceedings.  The  security  on  appeal  may 
DC  limited  in  the  case  of  an  execution,  etc. 

§  947.    Undertaking  may  be  in  one  instrument  or  several. 

§  948.    Justification   of  sureties   on   undertaking  on   appeal. 

§  949.    Undertakings   in   cases  not   specified. 

§  950.  What  papers  to  be  used  on  an  appeal  from  the  judg- 
ment. 

§  951.  What  papers  used  on  appeals  from  orders,  except 
orders  granting  or  refusing  new  trials. 

§  952.  What  papers  to  be  used  on  an  appeal  from  an  order 
granting   or   refusing   a   new   trial. 

§  953.    Copies  and  undertakings,  how  certified. 

§  954.    When   appeal   may  be  dismissed.    When   not. 

§  955.     Effect  of  dismissal. 

§  956.    What  may  be  reviewed  on  appeal  from  judgment. 

§  957.     Remedial   powers   of  an  appellate  court. 

§  958.  On  judgment  on  appeal,  remittitur  must  be  certified 
to  the  clerk  of  the  court  below. 

§  959.  Provisions  of  this  chapter  not  applicable  to  appeals 
to  County  Courts. 


§§  936-939.  APPEALS  IN  GENERAL.  380 

§  936.  A  judgment  or  order  in  a  civil  action,  ex- 
cept when  expressly  made  final  by  this  Code,  may 
be  reviewed  as  prescribed  in  this  title,  and  not 
otherwise. 

Judgments  and  orders,  appeal  from:  Sec.  939. 

§  937.  An  order  made  out  of  court,  without  no- 
tice to  the  adverse  party,  may  be  vacated  or  mod- 
ified without  notice,  by  the  judge  Avho  made  it; 
or  ma 5'  be  vacated  or  modified  on  notice,  in  the 
manner  in  which  other  motions  are  made. 

Orders,  generally:  Sec.  1003  et  seq. 

§  938,  Any  party  aggrieved  may  appeal  in  the 
cases  prescribed  in  this  title.  The  party  appeal- 
ing is  known  as  the  appellant,  and  the  adverse 
party  as  the  respondent. 

Death  of  party:  Sec.  385. 

Appeals  from  judgments  or  orders  in,  courts  ex- 
isting before  January  1,  1880.  See  post,  Appen- 
dix, p.  865. 

§  939.    An  appeal  may  be  tal^eu: 
1.    From  a  final  judgment  in  an  action  or  spe- 
cial proceeding  commenced  in  the  court  in  which 
the  same  is  rendered,  within  six  months  after  the 
\     entry  of  judgment.     But  an  exception  to  the  de- 
C\  cision  or  verdict,  on  the  ground  that  it  is  not  sup- 
4     ported  by  the  evidence,  cannot  be  reviewed  on  an 
.^   appeal  from  the  judgment,  unless  the  appeal  is 
^     taken  within  sixty  days  after  the  rendition  of  the 
/*"    judgment; 

^  2.  From  a  judgment  rendered  on  an  appeal  from 
\i^j  an  inferior  court,  witliin  ninety  days  after  the  en- 
\     try  of  sucli  judgment; 

;\  3.  From  an  order  granting  or  refusing  a  new 
^  trial;  from  an  order  granting  or  dissolving  an  in- 
^y     junction;  from  an  order  refusing  to  grant  or  dis- 


3S1  APPEALS   IN   GENERAL  §  940 

solve  an  io junction;  from  an  order  appointing  a 
receiver;  from  an  order  dissolving  or  refusing  to 
dissolve  an  attachment;  from  an  order  granting 
or  refusing  to  grant  a  change  of  the  place  of  trial; 
from  any  special  order  made  after  final  judgment; 
from  an  interlocutory  judgment  in  actions  for  par- 
tition of  real  property;  and  from  an  order  con- 
firming, changing,  modifying,  or  setting  aside  the 
report,  in  whole  or  in  part,  of  the  referees  in  ac- 
tions for  partition  of  real  property  in  the  cases 
mentioned  in  section  seven  hundred  and  sixty- 
three  of  this  Code,  within  sixty  days  after  the 
order  or  interlocutory  judgment  is  made  and  en- 
tered in  the  minutes  of  the  court,  or  filed  with 
the  clerk.  [Approved  March  3,  1897;  Stats.  1897, 
c.  62.] 

Effect  of  appeal:  See.  sec.  94G,  infra.  As  to  the 
record  on  appeals,  see  sec.  951,  post. 

Appeals,  to  Supreme  Court:  Sees.  963-966;  to 
Superior  Court,  sees.  974-980. 

Definition  of  judgment,  sec.  577;  exceptions, 
need  of,  sees.  646,  956. 

As  to  appeal  from  judgment  on  controversy 
sul)mitted  without  action,  see  sec.  1140. 

Orders  reviewable  on  appeal  from  judgment: 
Sec.  956. 

v^  940.  An  appeal  is  taken  by  filing  with  the 
clerk  of  the  court  in  which  the  judgment  or  order 
api)ealed  from  is  entered,  a  notice  stating  the  ap- 
peal from  the  same,  or  some  specific  part  thereof, 
and  serving  a  similar  notice  on  the  adverse  party 
or  his  attorney.  The  order  of  service  is  immate- 
rial, but  the  appeal  is  ineffectual  for  any  purpose 
unless  within  five  days  after  service  of  the  notice 
of  appeal,  an  undertaking  be  filed,  or  a  deposit 
of  money  be  made  with  the  clerk,  as  hereinafter 
provided,  or  the  undertaking  be  waived  by  the  ad- 


§§  941,  942  APPEALS  IN  GENERAL.  382 

verse  party  in  writing.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  p.  336.  In 
effect  July  1,  1874.] 

Filing  and  serving:  Sec.  1015. 

Notice  of  appeal,  generally:  See  sec.  1010  et  seq.; 
see  sec.  1714. 

Undertaliing  on  appeal,  requirements  of:  Sec. 
941;  unnecessary,  when,  sees.  965,  1058;  exception 
to  sureties,  time  for,  sec.  648. 

Exceptions,  necessity  for:  Sees.  646,  956. 

Service  of  papers:  Sees.  1010-1017. 

As  to  the  practice  on  appeals  in  criminal  causes 
in  such  cases,  see  Pen.  Code,  sec.  1237. 

§  941.  The  undertaking  on  appeal  must  be  in 
writing,  and  must  be  executed  on  the  part  of  the 
appellant,  by  at  least  two  sureties,  to  the  effect 
that  the  appellant  will  pay  all  damages  and  costs 
which  may  be  awarded  against  him  on  the  appeal, 
or  on  a  dismissal  thereof,  not  exceeding  three  hun- 
dred dollars;  or  that  sum  must  be  deposited  with 
the  clerk  with  whom  tlie  judgment  or  order  was 
entered,  to  abide  tlie  event  of  the  appeal. 

Undertaking  on  appeal,  filing,  time  for:  Sec.  940; 
and  see  sec.  1054;  sufficiency  of,  sec.  954;  sureties, 
paying  judgment,  sec.  10.'9. 

Deposit  with  clerk:  Sec.  948;  also  sees.  573,  2104. 

Liability  of.  Civ.  Code:  Sec.  2836;  qualification, 
sec.  1058;  subrogation,  sec.  709. 

Filing  new  undertaking  in  appellate  court:  See 
post,   sec.   954. 

Qualilleation  of  sureties:  Sec.  1057. 

Lial)jlity  on  undertakings,  generally.  As  to  sure- 
ties' rights,  see  sees.  709,  1059. 

§  942.  If  the  appeal  be  from  a  judgment  or  or- 
der directing  the  payment  of  money,  it  does  not 


383  APPEALS    IN    GENERAL.  §  942 

stay  the  execution  'of  the  judgment  or  order  un- 
less a  written  undertalving  be  executed  on  the 
part  of  the  appellant,  by  two  or  more  sureties,  to 
the  effect  that  they  are  bound  in  double  the 
amount  named  in  the  judgment  or  order;  that  if 
the  judgment  or  order  appealed  from,  or  any  part 
thereof,  be  affirmed,  or  the  appeal  be  dismissed, 
the  appellant  Avill  pay  the  amount  directed  to  be 
paid  by  the  judgment  or  order,  or  the  part  of 
such  amount  as  to  which  the  judgment  or 
order  is  affirmed,  if  affirmed  only  in  part, 
and  all  damages  and  costs  which  may  be  awarded 
against  the  appellant  upon  the  appeal,  and  that  if 
the  appellant  does  not  malie  such  payment  within 
thirty  days  after  the  filing  of  the  remittitur  from 
the  Supreme  Court  in  the  court  from  which  the 
appeal  is  tal^en,  judgment  may  be  entered  on  mo- 
tion of  the  respondent  in  his  favor  against  the 
sureties,  for  such  amount,  together  with  the  in- 
terest that  may  be  due  thereon,  and  the  damages 
and  costs  which  may  be  awarded  against  the  ap- 
pellant upon  the  appeal.  If  the  judgment  or  order 
appealed  from  be  for  a  greater  amount  than  two 
thousand  dollars,  and  the  sureties  do  not  state  in 
their  affidavils  of  justification  accompanying  the 
undertaking,  that  they  are  each  worth  the  sum 
specified  in  the  undertaking,  the  stipulation  may 
be  that  the  judgment  to  be  entered  against  the 
sureties  shall  be  for  such  amounts  only  as  in  their 
affidavits  they  may  state  that  they  are  severally 
worth,  and  judgment  may  be  entered  against  the 
sureties  by  the  court  from  which  the  appeal  is 
taken,  pursuant  to  the  stipulations  herein  desig- 
nated. When  the  judgment  or  order  appealed  from 
is  made  payable  in  a  specified  kind  of  money  or 
currency,  the  judgment  entered  against  the  sure- 
ties upon  the  undertaking  must  be  made  payable 
in  the  same  kind  of  money  or  currency.     [Amend- 


§  943  APPEALS    IN    GENERAL.  384 

meut  approved  March  24,  1874;  •Amendments  1873- 
4,  p.  33(5.    In  effect  July  1,  1880.] 

Deposit  in  lieu  of  undertaking:  Sees.  941,  948. 

Qualification  of  sureties:  Sec.  1057. 

Speciiied  liind  of  money:  Sec.  667. 

Stay  where  no  provision  made:  See  sec.  949. 

§  943.  If  the  judgment  or  order  appealed  from 
direct  tlie  assignment  or  delivery  of  documents  or 
personal  property,  the  execution  of  the  judgment 
or  order  cannot  be  stayed  by  appeal,  unless  the 
things  required  to  be  assigned  or  delivered  be 
placed  in  the  custody  of  such  officer  or  receiver 
as  the  court  may  appoint,  or  unless  an  undertaking 
be  entered  into  on  the  part  of  the  appellant,  with 
at  least  two  sureties,  and  in  such  amount  as  the 
court,  or  a  judge  thereof,  may  direct,  to  the  effect 
that  the  appellant  will  obej^  the  order  of  the  ap- 
pellate court  upon  the  appeal.  If  the  judgment  or 
order  appealed  from  appoint  a  receiver,  the  execu- 
tion of  the  judgment  or  order  cannot  be  stayed 
by  appeal,  unless  a  written  undertaking  be  exe- 
cuted on  the  part  of  the  appellant,  with  two  or 
more  sureties,  to  the  effect  that  if  such  judgment 
or  order  be  affirmed  or  the  appeal  dismissed,  tlie 
appellant  will  pay  all  damages  which  the  re- 
spondent may  sustain  by  reason  of  such  stay,  not 
exceeding  an  amount  to  be  fixed  by  the  judge  of 
the  court  by  which  the  judgment  was  rendered  or 
order  made,  which  amount  must  be  specified  in  the 
undertnking.  If  the  judgment  or  order  appealed 
from  direct  the  sale  of  personal  property  upon  the 
foreclosure  of  a  mortgage  thereon,  the  execution 
of  the  judgment  or  order  cannot  be  stayed  on  ap- 
])('al.  unless  an  undertaking  be  entered  into  on  the 
part  of  the  appellant,  with  at  least  two  sureties, 
in  sucli  amount  as  the  court,  or  the  judge  thereof, 
may  direct,  to  the  effect  that  the  appellant  will,  on 


385  APPEALS  IN  GENERAL.  §§  944,  945 

demaud,  deliver  the  mortgaged  property  to  the 
proper  officer  if  the  judgment  be  affirmed,  or  in 
default  of  such  delivery  that  the  appellant  and 
sureties  will,  on  demand,  pay  to  the  proper  officer 
the  full  value  of  such  property  at  the  date  of  the 
appeal.  [Approved  :SIarch  3,  1807;  Stats.  1897, 
c.  64.] 

Receiver:  Sec.  561. 

Undertalving:  Sec.  041. 

§  944.  If  the  judgmeut  or  order  appealed  from 
direct  the  execution  of  a  convej'ance  or  other 
instrument,  the  execution  of  tlie  judgment  or  order 
cannot  be  stayed  by  the  appeal  until  the  instru- 
ment is  executed  and  deposited  with  the  clerk 
with  whom  the  judgment  or  order  is  entered,  to 
abide  the  judgment  of  the  appellate  court. 

§  945.  If  the  judgment  or  order  appealed  from 
direct  the  sale  or  delivery  of  possession  of  real 
property,  the  execution  of  the  same  cannot  be 
stayed,  unless  a  written  undertalviug  be  executed 
on  the  part  of  the  appellant,  with  two  or  more 
sureties,  to  the  effect  that  during  the  possession 
of  such  property  by  the  appellant,  he  will  not  com- 
mit, or  suffer  to  be  committed,  any  waste  thereon, 
and  tliat  if  the  judgment  be  affirmed,  or  the  ap- 
peal dismissed,  he  will  pay  the  value  of  the  use 
and  occupation  of  the  property  from  the  time  of 
the  appeal  until  the  delivery  of  possession  thereof, 
pursuant  to  the  judgment  or  order,  not  exceeding 
tlie  sum  to  be  fixed  by  the  judge  of  the  court  by 
which  the  judgment  was  rendered  or  order  made, 
and  wliicli  must  be  specified  in  the  undertaking. 
TMien  the  judgment  is  for  the  sale  of  mortgaged 
premises,  and  the  payment  of  a  deficiency  arising 
upon  the  sale,  tlie  undertaking  must  also  provid(^ 
for  the  payment  of  such  deficiency. 
Code  Civ.  Proc— 33. 


§§  946,  947  APPEALS   IN   GENERAL.  §86 

Realty,  sale  or  delivery  of  possession  of:  Sees. 
.720,  744. 
Deposit  witli  clerlx:  Sees.  941,  948. 
Undertaking:  Sec.  941. 
Qualifications   of   sureties:   Sec.    1057. 
Waste:  Sees.  745,  74t>. 

§  946.  Whenever  an  appeal  is  perfected,  as 
provided  in  the  preceding  sections  of  this  chapter, 
it  stays  all  further  proceedings  in  the  court  below 
upon  the  judgment  or  order  appealed  from,  or  up- 
on the  matters  embraced  therein,  and  releases 
from  levy  property  which  has  been  levied  upon 
under  execution  issued  upon  such  judgment;  but 
the  court  below  may  proceed  upon  any  other  mat- 
ter embraced  in  the  action  and  not  affected  by  the 
order  appealed  from.  And  the  court  below  may, 
in  its  discretion,  dispense  with  or  limit  the  secu- 
rity required  by  this  chapter,  when  the  appellant 
is  an  executor,  administrator,  trustee,  or  other 
person  acting  in  another's  right.  An  appeal  does 
not  continue  in  force  an  attachment  unless  an 
undertalving  be  executed  and  filed  on  the  part  of 
the  appellant,  by  at  least  two  sureties,  in  double 
the  amount  of  the  debt  claimed  by  him,  that  the 
appellant  will  pay  all  costs  and  damages  which  the 
respondent  may  sustain  by  reason  of  the  attach- 
ment, in  case  the  order  of  the  court  below  be  sus- 
tained; and,  unless,  within  five  days  after  the  en- 
try of  the  order  appealed  from,  such  appeal  be 
perfected.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  337.  In  effect  July  1, 
1874.1 

Security  of  executor:  See  sec.  966. 

§  947.  The  undertakings  prescribed  by  sections 
nine  hundred  and  forty-one,  nine  hundred  and 
forty-two,  nine  hundred  and  forty-three,  and  nine 
hundred  and  forty-five,  may  be  in  one  instrument 
or  several,  at  the  option  of  the  appellant. 


387  APPEALS    IN    GENERAL.  §§  948,949 

§  948.  The  adverse  party  may  except  to  the 
sufficiency  of  the  sureties  to  any  of  the  undertak- 
ings mentioned  in  sections  nine  hundred  and  forty- 
one,  nine  hundred  and  forty-two,  nine  hundred 
and  forty-three,  and  nine  hundred  and  forty-five, 
at  any  time  witliin  thirty  days  after  the  filing  of 
such  undertalving;  and  unless  they  or  other 
sureties,  \rithin  twenty  days  after  the  appel- 
lant has  been  served  with  notice  of  such  exception, 
justify  before  a  judge  of  the  court  below,  or  coun- 
ty clerk,  upon  five  days'  notice  to  the  respondent 
of  the  time  and  place  of  justification,  execution 
of  the  judgment,  order,  or  decree  appealed  from  is 
no  longer  stayed;  and  in  all  cases  where  an  un- 
dertaking is  required  on  appeal  by  the  provisions 
of  this  title,  a  deposit  in  the  court  below  of  the 
amount  of  the  judgment  appealed  from,  and  three 
hundred  dollars  in  addition,  shall  be  equivalent  to 
filing  the  undertaking,  and  in  all  cases  the  under- 
taking or  deposit  may  be  waived  by  the  written 
consent  of  the  respondent.  [Amendment  approved 
March  9,  18S0:  Amendments  1880,  p.  6.  In  ef- 
fect March  9,  1880.] 

Justification  of  sureties:  See  sec.  495. 

§  949.  In  cases  not  provided  for  in  sections  nine 
hundred  and  forty  two,  nine  hundred  and  forty- 
three,  nine  hundred  and  forty-four,  and  nine  hun- 
dred and  forty-five,  the  perfecting  of  an  appeal 
by  giving  the  undertaking  or  making  the  deposit 
mentioned  in  section  nine  hundred  and  forty-one, 
sta.vs  proceedings  m  the  court  below  upon  the 
judgment  or  order  appealed  from,  except  where  it 
directs  the  sale  of  perishable  property;  in  which 
case  the  court  below  may  order  the  property  to  be 
sold  and  the  proceeds  thereof  to  be  deposited,  to 
abide  the  judgment  of  the  appellate  court.  And 
except  also,  where  it  adjudges  the  defendant  guil- 
ty of  usurping,  or  intruding  into,  or  unlawfully 


§§  950,  951  APPEALS    IN    GENERAL.  388 

holding  public  office,  civil  or  military,  within  this 
State.  And  except  also,  ^Yhere  the  order  grants, 
or  refuses  to  grant,  a  change  of  the  place  of  trial 
of  an  action.  [Amendment  approved  February  16, 
1874;  Amendments  1873-4,  p.  408.  In  effect  Febru- 
ary IG,  1874.] 

§  950.  On  an  appeal  from  a  final  judgment,  the 
appellant  must  furnish  the  court  with  a  copy  of 
the  notice  of  appeal,  of  the  judgment  roll,  and  of 
any  bill  of  exceptions  or  statement  in  the  case, 
upon  which  the  appellant  relies.  Any  statement 
used  on  motion  for  a  new  trial,  or  settled  after  de- 
cision of  such  motion,  when  the  motion  is  made 
upon  the  minutes  of  the  court,  as  provided  in  sec- 
tion six  hundred  and  sixty-one,  or  any  bill  of  ex- 
ceptions settled,  as  provided  in  sections  six  hun- 
dred and  forty-nine  or  six  hundred  and  fifty,  or 
used  on  motion  for  a  new  trial,  may  be  used  on 
appeal  from  a  final  judgment  equally  as  upon  ap- 
peal from  the  order  granting  or  refusing  the  new 
trial.  [Amendment  approved  March  24,  1874; 
Amendments  1878-4,  p.  838.  In  effect  July  1, 
1874.] 

Judgment  roll:  Sec.  070. 

Exceptions:  Sec.  956. 

Transcript,  authentication  of:  Sec.  953;  contents, 
sees.  950-952. 

§  951.  On  appeal  from  a  judgment  rendered 
on  an  appeal,  or  from  an  order,  except  an  order 
granting  or  refusing  a  new  trial,  the  appellant 
must  furnish  the  court  with  a  copy  of  the  notice 
of  appeal,  of  the  judgment  or  order  appealed 
from,  and  of  papers  used  on  the  hearing  in  the 
court  below.  [Amendment  approved  March  24, 
1874:  Amendmeuts.  1873-4.  p.  889.  In  effect  July 
1,   1874.] 

liost  papers:  Sec.  1045. 


389  APPEALS    IN    GENERAL.  §§  952-954 

§  952.  On  an  appeal  from  an  order  granting  or 
refusing  a  new  trial,  the  appellant  must  furnish 
the  court  with  a  copy  of  the  notice  of  appeal,  of 
the  order  appealed  from,  and  of  the  papers  desig- 
nated in  section  six  hundred  and  sixty-one  of  this 
Code.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  839.  In  effect  July  1, 
1874.] 

Papers  on  appeal,  generally:  See  sees.  950,  951. 

Lost  papers:  Sec.  1045. 

§  953.  The  copies  provided  for  in  the  last  three 
sections  must  be  certified  to  be  correct  by  the 
clerk  or  the  attorneys,  and  must  be  accompanied 
with  a  certificate  of  the  clerk  or  attorneys  that  an 
undertaking  on  appeal,  in  due  form,  has  been  prop- 
erly filed,  or  a  stipulation  of  the  parties  waiving 
an  undertaking.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  339.  In  effect 
July  1,  1874.  J 

Ileview  on  appeal:  Sec.  53. 

§  954.  If  the  appellant  fails  to  furnish  the  re- 
quisite papers,  the  appeal  may  be  dismissed;  but 
no  appeal  can  be  dismissed  for  insufficiency  of  the 
undertaking  thereon,  if  a  good  and  sufficient  un- 
dertaking, approved  by  a  justice  of  the  Supreme 
Court,  be  filed  in  the  Supreme  Court  before  the 
hearing  upon  motion  to  dismiss  the  appeal.  When 
it  is  made  to  appear  to  the  satisfaction  of  the 
court,  or  a  judge  thereof,  from  which  the  appeal 
was  talven.  that  a  surety  or  sureties  upon  an  ap- 
peal bond  from  any  cause  has  or  have  become 
insufficient,  and  the  bond  or  undertaking  inade- 
quate as  security  for  the  payment  of  the  judg- 
ment appealed  from,  the  last-named  court,  or  a 
judge  thereof,  may  order  the  giving  of  a  new  bond 
with  sufficient  sureties,  as  a  condition  to  the  main- 


§§  955-957  APPEALS    IN    GENERAL.  390 

tenance  of  the  appeal.  The  said  bond  or  undertak- 
ini?  shall  be  approved  by  the  last-named  court,  or 
a  judge  thereof;  and  in  case  said  sureties  fail  to 
justify  before  said  last-named  court,  or  a  judge 
thereof,  or  fail  to  comply  with  the  order  to  ap- 
pear and  justify,  execution  may  issue  upon  the 
judgment  as  if  no  undertalving  to  stay  execution 
had  been  given.  [Amendment  approved  March  16, 
1895;  Stats.  1-895,  p.  59.    In  effect  in  sixty  days.] 

See  sec.  951. 

§  955.  The  dismissal  of  an  appeal  is  in  effect 
an  affirmance  of  the  judgment  or  order  appealed 
from,  unless  the  dismissal  is  expressly  made  with- 
out prejudice  to  another  appeal. 

§  956.  Upon  an  appeal  from  a  judgment,  the 
court  may  review  the  verdict  or  decision,  and  any 
intermediate  order  or  decision  excepted  to,  which 
involves  the  merits,  or  necessarily  affects  the  judg- 
ment, except  a  decision  or  order  from  which  an 
appeal  might  have  been  taken.  [Amendment  ap- 
proved April  3,  ISTG;  Amendments  1875-6,  p.  91. 
In  effect  June  1,  1876.] 

§  957.  When  the  judgment  or  order  is  reversed 
or  modified,  the  appellate  court  may  make  com- 
plete restitution  of  all  property  and  rights  lost  by 
the  erroneous  judgment  or  order,  so  far  as  such 
restitution  is  consistent  with  protection  of  a  pur- 
chaser of  property  at  a  sale  ordered  by  the  judg- 
ment, or  had  under  process  issued  upon  the  judg 
ment,  on  tlie  appeal  from  which  the  proceedings 
were  not  stayed;  and  for  relief  in  such  cases  the 
appellant  may  have  his  action  against  the  respond- 
ent, enforcing  the  judgment  for  the  proceeds  of  the 
sale  of  the  property,  after  deducting  therefrom  the 
expenses  of  the  sale.    When  it  appears  to  the  ap- 


391  APPEALS   IN   GENERAL.  §§  958,  959 

pellate  court  that  the  appeal  was  made  for  delay, 
it  may  add  to  the  costs  such  damages  as  may  be 
just.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  340.    In  effect  July  1,  1874.] 

Judgment  reversed:  Sec.  966. 

Costs  on  appeal,  generally:  Sec.  1034;  costs  be- 
^ow,  etc.,  see  sees.  1022,  1039;  where  modification 
of  judgment,  sec.  1027,  subd.  2. 

§  958.  AVhen  judgment  is  rendered  upon  the 
appeal,  it  must  be  certified  by  the  clerk  of  the  Su- 
preme Court  to  the  clerk  with  whom  the  judgment 
roll  is  filed,  or  the  order  appealed  from  is  entered. 
In  cases  of  appeal  from  the  judgment,  the  clerk 
with  whom  the  roll  is  filed  must  attach  the  certifi- 
cate to  the  judgment  roll,  and  enter  a  minute  of 
the  judgment  of  the  Supreme  Court  on  the  docket; 
against  the  original  entry.  In  cases  of  appeal  from 
an  order,  the  clerk  must  enter  at  length  in  the  re- 
cords of  the  court  the  certificate  received,  and  min- 
ute against  the  entry  of  the  order  appealed  from, 
a  reference  to  the  certificate,  with  a  brief  state- 
ment that  such  order  has  been  affirmed,  reversed, 
or  modified  by  the  Supreme  Court  on  appeal. 

Judgment  rendered  on  appeal:  Sec.  45. 

Remittitur.— Judgment  becomes  final  thirty  days 
after  it  is  filed:  See  Const.,  art.  6,  sec.  2. 

§  959.  The  provisions  of  this  chapter  do  not  ap- 
ply to  appeals  to  Superior  Courts.  [Amendment 
approved  March  9,  1880;  Amendments  1880,  p.  6. 
In  effect  March  9,  1880.] 

Appeals  to  Superior  Courts:  Sees.  974-980. 


§  963        APPEALS  TO  SUPREME  COURT.        392 

CHAPTER  II. 

APPEALS   TO    SUPREME    COURT. 

§  963.     When  an  appeal  may  be  taken. 

§  934.  Appeals;  in  what  cases  appealed  from  Justices' 
Courts. 

§  965.     Appeals  by  executors  and  administrators. 

§  966.  Acts  of  executors  and  administrators,  where  appoint- 
ment vacated. 

§  963.  An  appeal  may  be  taken  to  the  Supreme 
Coin't,  from  a  Superior  Court,  in  the  following 
cases: 

1.  From  a  final  judgment  entered  in  an  action, 
or  special  proceeding,  commenced  in  a  Superior 
Court,  or  brought  into  a  Superior  Court  from  an- 
other court. 

2.  From  an  order  granting  or  refusing  a  new 
trial,  or  granting  or  dissolving  an  iniunction,  or 
refusing  to  grant  or  dissolve  an  injunction,  or  ap- 
pointing a  receiver,  or  dissolving  or  refusing  to  dis- 
solve an  attachment,  or  changing  or  refusing  to 
change  the  place  of  trial,  from  any  special  order 
made  after  final  judgment,  and  from  such  interlo- 
cutory judgment  in  actions  for  partition  as  deter- 
mines the  rights  and  interests  of  the  respective 

^'    parties,  and  directs  partition  to  be  made; 

3.  From  a  judgment  or  order  granting  or  refus- 
>j  ing  to  grant,  revolting  or  refusing  to  revolve,  letters 
^-  testamentary,  or  of  administration,  or  of  guardian- 
j  ship;  or  admitting  or  refusing  to  admit  a  will  to 
\  probate,  or  against  or  in  favor  of  the  validity  of  a 
<^  will,  or  revolting  the  probate  thereof;  or  against 
K  or  in  favor  of  setting  apart  property,  or  making  an 
!^     allowance  for  a  widow  or  child;  or  against  or  in 

favor  of  directing  the  partition,  sale,  or  convey- 
ance of  real  property,  or  settling  an  account  of  an 
executor,  administrator,  or  guardian;  or  refusing. 


393  APPEALS    TO    SUPREME    COURTS.    §§  964,  965 

allowing,  or  directing  the  distribution  or  partition 
of  an  estate,  or  any  part  thereof,  or  the  payment 
of  a  debt,  claim,  or  legacy,  or  distributive  sliare;  or 
confirming  or  refusing  to  confirm  a  report  of  an  ap- 
praiser or  appraisers  setting  apart  a.  homestead. 
[Approved  March  27,  1897;  Stats.  1897,  c.  151.] 

Appeal  from  final  judgment,  compare  sec.  939, 
subd.  1. 

Appeals  from  orders,  compare  sec.  939,  subd.  3. 

Appeals  from  probate  decisions,  generally:  See 
sees.  1714,  1715;  special  administration,  granting 
no  appeal,  sec.  1413. 

Appeals  in  criminal  cases:  See  sec.  52,  ante,  and 
sees.  1237,  1238,  of  tlie  Penal  Code. 

§  964.  The  foregoing  section  does  not  apply  in 
cases  appealed  from  justices',  i^olice,  or  other  in- 
ferior courts,  except  cases  of  forcible  entry  and  de- 
tainer, and  cases  involving  tlie  title  or  possession 
of  real  property,  or  the  legality  of  any  tax,  impost, 
assessment,  toll,  or  municipal  fine,  or  in  which  the 
demand,  exclusive  of  interest,  or  the  value  of  the 
property  in  controversy,  amounts  to  three  hundred 
dollars 

Appeals  to  Superior  Court:  Sec.  974  et  seq. 

Forcible  entry  and  detainer,  concurrent  juris- 
diction of  justices'  courts,  sec.   113,  subd,  1. 

§  965.  When  an  executor,  administrator,  or 
guardian,  Avho  has  given  an  official  bond,  appeals 
from  a  judgment  or  order  of  the  Superior  Court 
made  in  the  proceedings  had  upon  the  estate  of 
which  he  is  executor,  administrator,  or  guardian, 
his  official  bond  shall  stand  in  the  place  of  an  un- 
dertalving  on  appeal:  and  the  sureties  thereon  shall 
be  liable  as  on  such  undertalcing. 

Undertalving  on  appeal,  and  generally:  Sec.  941. 

Probate  appeals:  Sec.  9G3,  subd.  3. 


§§  966,  974   APPEALS   TO   SUPERIOR    COURTS.  394 

§  966.  When  the  judgment  or  order  appointing^ 
an  executor,  or  administrator,  or  guardian,  is  re- 
versed on  appeal,  for  error,  and  not  for  want  of 
jurisdiction  of  the  court,  all  lawful  acts  in  admin- 
istration upon  the  estate  performed  by  such  execu- 
tor, or  administrator,  or  guardian,  if  he  have  qual- 
ified, are  as  valid  as  if  such  judgment  or  order  had 
been  afllrmed. 

Appointment  of  executor,  etc.,  appeal  from:  Sec. 
963,  subd.  3. 

Restitution  on  reversal,  etc:  Sec.  957. 


CHAPTER  III. 

APPEALS  TO  SUPERIOR  COURTS. 

§  974.  Appeal  from  judgment  of  Justice's  or  Police  Court. 

§  975.  Appeal  on  questions  of  law;  statement. 

§  976.  Appeal    on   questions   of   fact,    or   law   and   fact. 

§  977.  Transmission  of  papers  to  appellate  court, 

§  978.  Undertaking  on  appeal.  . 

§  979.  Stay  of  proceedings  on  filing  undertaking. 

S  980.  Powers  of  Superior  Court  on  appeal. 

§  974.  Any  party  dissatisfied  with  a  judgment 
rendered  in  a  civil  action  in  a  Police  or  .Justice's 
Court,  may  appeal  therefrom  to  the  Superior  Court 
of  the  county,  at  any  time  within  thirty  days  after 
the  rendition  of  the  judgment.  The  appeal  is 
taken  bj'^  filing  a  notice  of  appeal  with  the  justice 
or  judge,  and  serving  a  copy  on  the  adverse  party. 
The  notice  must  state  whether  the  appeal  is  taken 
from  the  whole  or  a  part  of  the  judgment,  and  if 
from  a  part,  what  part,  and  whether  the  appeal  is 
taken  on  questions  of  law  or  fact,  or  both. 

Notice  of  appeal,  service  on  adverse  party:  See 
sec.  1015,  and  compare  sec.  940. 

Appeals  from  decrees  or  orders  of  courts  in  ex- 
istence before  January  1,  1880:  See  post.  Appen- 
dix,  p.   805. 


395  APPEALS    TO    SUPERIOR    COURTS.    §§  975-977 

§  975.  When  a  party  appeals  to  the  Superior 
Court  on  questions  of  law  alone,  he  must,  within 
ten  days  from  the  rendition  of  judgment,  prepare  a 
statement  of  the  case  and  file  the  same  with  ine 
justice  or  judi^e.  The  statement  must  contain  the 
grounds  upon  which  the  party  intends  to  rely  on 
the  appeal,  and  so  much  of  the  evidence  as  may 
be  necessary  to  explain  the  grounds,  and  no  more. 
Within  ten  days  after  he  receives  notice  that  the 
statement  is  filed,  the  adverse  party,  if  dissatisfied 
with  the  same,  may  file  amendments.  The  pro- 
posed statement  and  amendments  must  be  settled 
by  the  Justice  or  judge;  and  if  no  amendment  be 
filed,  the  original  statement  stands  as  adopted. 
The  statement  thus  adopted,  or  as  settled  by  tne 
justice  or  judge,  with  a  copy  of  the  docliet  of  the 
justice  or  judge,  and  all  motions  filed  with  him  by 
the  parties  during  the  trial,  and  the  notice  of  ap- 
peal, may  be  used  on  the  hearing  of  the  appeal 
before  the  Superior  Court. 

Settlement  of  statement  on  appeal:  Compare 
sec.  650. 

§  976.  When  a  party  appeals  to  the  Superior 
Court  on  questions  of  fact,  or  on  questions  of  both 
law  and  fact,  no  statement  need  be  made,  but  tne 
action  must  be  tried  anew  in  the  Superior  Court. 
[Amendment  approved  March  20,  1880;  Amend- 
ments 1880,  p.  IG.    In  effect  March  26,  1880.] 

Conduct  of  trial:  Sec.  980. 

§  977.  Upon  receiving  the  notice  of  appeal,  and 
on  payment  of  the  fees  of  the  justice  or  judge, 
payable  on  appeal  and  not  included  in  the  judg- 
ment, and  filing  an  undertalving  as  required  in  the 
next  section,  and  after  settlement  or  adoption  of 
statement,  if  any,  the  justice  or  judge  must,  with- 
in five  days,  transmit  to  the  clerk  of  the  Superior 


§  978  APPEALS    TQ    SUPERIOR    COURTS.  396 

Court,  if  the  appeal  be  ou  questions  of  law  alone, 
a  certified  copy  of  his  docket,  the  statement  as  ad- 
mitted or  as  settled,  the  notice  of  appeal,  and  the 
undertaking-  filed;  or,  if  the  appeal  be  on  questions 
of  fact,  or  both  law  and  fact,  a  certified  copy  of 
his  docket,  the  pleadings,  all  notices,  motions,  and 
all  other  papers  filed  in  the  cause,  the  notice  of 
appeal,  and  the  undertaking  filed;  and  the  justice 
or  judge  may  be  compelled  by  the  Superior  Court, 
by  an  order  entered  upon  motion,  to  transmit  such 
papers,  and  may  be  fined  for  neglect  or  refusal  to 
transmit  the  same.  A  certified  copy  of  such  order 
may  be  served  on  the  justice  or  judge  by  the  party 
or  his  attorney.  In  the  Superior  Court,  either  par- 
ty may  have  the  benefit  of  all  legal  objections 
made  in  the  Justice's  or  Police  Court.  [Approved 
March  27,  1897;  Stats.  1897,  ch.  152.] 

§  978.  An  appeal  from  a  Justice's  or  Police 
Court  is  not  effectual  for  any  purpose,  unless  an 
undertaking  be  filed  Avith  two  or  more  sureties  in 
tlie  sum  of  one  liundred  dollars  for  the  payment 
of  the  costs  on  the  appeal;  or,  if  a  stay  of  proceed- 
ings be  claimed,  in  a  sum  equal  to  twice  the 
amount  of  the  judgment,  including  costs,  when  the 
judgment  is  for  the  payment  of  money;  or  twice 
the  value  of  property,  including  costs,  Avhen  the 
judgment  is  for  the  recovery  of  specific  personal 
property,  and  must  be  conditioned,  when  the  ac- 
tion is  for  the  recovery  of  money,  that  the  appel- 
lant will  pay  the  amount  of  the  judgment  appeal- 
ed from,  and  all  costs^  if  the  ai)peal  be  withdrawn 
or  dismissed,  or  the  amount  of  any  judgment  and 
all  costs  that  may  be  recovered  against  him  in  the 
action  in  the  Superior  Court.  When  the  action  is 
for  the  recovery  of  or  to  enforce  or  foreclose  a 
lien  on  specific  personal  property,  the  undertaking 
must  be  conditioned  that  the  appellant  will  pay 


397  APPEALS   TO   SUPERIOR  COURTS.  §  978 

the  jiKlgment  and  costs  appealed  from,  and  obey 
the  order  of  the  court  made  therein,  if  tlie  appeal 
be  withdrawn  or  dismissed,  or  any  judgment  and 
costs  that  may  be  recovered  against  him  in  said 
action  in  the  Superior  Court,  and  will  obey  any  or- 
der made  by  the  court  therein.  When  ^iie  judg- 
ment appealed  from  directs  the  delivery  of  posses- 
sion of  real  property,  the  execution  of  the  same 
cannot  be  stayed  unless  a  written  undertaliing  be 
executed  on  the  part  of  the  appellant,  with  two  or 
more  sureties,  to  the  effect  that  during  the  posses- 
sion of  such  property  by  the  appellant,  he  will  not 
commit,  or  suffer  to  be  committed,  any  waste 
thereon,  and  that  if  the  appeal  be  dismissed  or 
withdrawn,  or  the  judgment  affirmed,  or  judgment 
be  recovered  against  him  in  the  action  in  the  teu- 
I^erior  Court,  he  will  pay  the  value  of  the  use  and 
occupation  of  the  property  from  the  time  of  the  ap- 
peal until  the  delivery  of  possession  thereof;  or 
Miat  he  will  pay  any  judgment  and  costs  that  may 
be  recovered  against  him  in  said  action  in  the  Su- 
perior Court,  not  exceeding  a  sum  to  be  fixed  uy 
the  justice  of  the  court  from  which  the  appeal  is 
taken,  and  which  sum  must  be  specified  in  the  un- 
dertalving.  A  deposit  of  the  amount  of  the  judg- 
ment, including  all  costs  appealed  from  or  of  the 
value  of  the  property,  including  all  costs  in  ac- 
tions for  the  recovery  of  specific  personal  prop- 
erty, with  the  justice  or  judge,  is  equivalent  to 
the  filing  of  the  undertaking,  and  in  such  cases, 
the  justice  or  judge  must  transmit  the  money 
to  the  clerk  of  the  Superior  Court,  to  be  by 
him  paid  out  on  the  order  of  the  court.  The 
adverse  party  may  except  to  the  sufficiency 
of  the  sureties  within  five  days  after  the  fil- 
ing of  the  undertalving,  and  unless  they  or 
other  sureties  justify  before  the  justice  or  judge 
within  five  days  thereafter,  upon  notice  to  the  ad- 
Code  Civ.  Proc— 34. 


§§  979,  980    APPEALS  TO   SUPERIOR  COURTS.  398 

rerse  party,  to  the  amounts  stated  in  their  affida- 
vits, the  appeal  must  be  regarded  as  if  no  such 
undertaking-  had  been  given.  [Amendment  ap- 
proved ^larch  20.  18S0;  Amendments  1880,  p.  16. 
In  effect  March  26,  1880.  J 

Undertaking  on  appeal:  Compare  sec.  941. 

Sureties,  justification:  Sec.  948;  qualification: 
Sec.  1057. 

§  979,  If  nn  execution  be  issued  on  the  filing 
of  the  undertaking  staying  proceedings,  the  justice 
or  judge  must,  by  order,  direct  the  officer  to  stay 
all  proceedings  on  the  same.  Such  officer  must, 
upon  payment  of  his  fees  for  services  rendered  on 
the  execution,  thereupon  relinquish  all  property 
levied  upon,  and  deliver  the  same  to  the  judgment 
debtor,  together  with  all  moneys  collected  from 
sales  or  otherwise.  If  his  fees  be  not  paid,  the  offi- 
cer may  retain  so  much  of  the  property  or  proceeds 
thereof  as  may  be  necessary  to  pay  the  same. 
[Amendment  approved  March  2G,  1880;  Amend- 
ments 1880,  p.  17.    In  effect  March  26,  1880.] 

§  980.  Upon  an  appeal  heard  upon  a  statement 
of  the  case,  the  Superior  Court  may  review  all  or- 
ders affecting  the  judgment  appealed  from,  and 
may  set  aside,  or  confirm,  or  modify  any  or  all  of 
the  proceedings  subsequent  to  and  dependent  up- 
on such  judgment,  and  may,  if  necessary  or  prop- 
er, order  a  new  trial.  AVhen  the  action  is  tried 
anew  on  appeal,  the  trial  must  be  conducted  in  all 
respects  as  other  trials  in  the  Superior  Court.  The 
provisions  of  this  Code  as  to  changing  the  place  of 
trial,  and  all  the  provisions  as  to  trials  in  the  Su- 
perior Court,  are  applicable  to  trials  on  apeal  in 
the  Superior  Court.  For  a  failure  to  prosecute  an 
appeal,  or  unnecessary  delay  in  bringing  it  to  a 
hearing,  the  Superior  Court,  after  notice,  may  or- 


399  APPEALS  TO  SUPERIOR  COURTS.  §  980 

der  the  appeal  to  be  dismissed,  with  costs;  and  if 
it  appear  to  such  court  that  the  appeal  was  made 
solely  for  delay,  it  may  add  to  the  costs  such  dam- 
ages as  may  be  just,  not  exceeding  twenty-five  per 
cent  of  the  judgment  appealed  from.  Judgments 
rendered  in  the  Superior  Court  on  appeal  shall 
have  the  same  force  and  effect,  and  may  be  en- 
forced in  the  same  manner,  as  judgments  in  ac- 
tions commenced  in  the  Superior  Court.  [Amend- 
ment approved  March  26,  18S0;  Amendments  1880, 
p.  17.    In  effect  March  2G,  1880.] 

The  foregoing  sections  end  chapter  3,  which, 
with  chapter  2  of  title  12  of  part  2,  was  entirely 
amended,  and  the  foregoing  chapters,  2  and  3, 
adopted  as  substitutes  therefor,  by  act  approved 
March  2G,  1880;  Amendments  1880,  14  (Ban.  ed. 
52);  took  effect  immediately;  repealed  all  acts  and 
parts  of  acts  in  conflict  therewith.  Chapters  4  and 
5,  of  title  13  of  part  2,  and  each  and  every  section 
thereof,  relating  to  appeals  from  probate  courts 
and  appeals  to  county  courts,  were  repealed  by  act 
approved  April  15,  1880;  Amendments  1880,  64 
(Ban.  ed.  238).    Took  effect  immediately. 

Amendments:  Sec.  473. 

Trial  de  novo:  See  ante,  sec.  976. 

New  trial:  See  sees.  656  et  seq. 


I 


REPEAL    OF    CERTAIN    CHAPTERS.  400 

TITLE  XIII. 
CHAPTERS  IV,  V. 

The  act  is  as  follows: 

An  act  to  repeal  chapters  four  aud  five,  of  title 
thirteen,  of  part  two,  of  the  Code  of  Civil  Proced- 
ure, and  each  and  every  section  of  said  chapters 
four  and  five,  relating  to  appeals  in  civil  actions. 
[Approved  April  15,  18S0.] 

The  People  of  the  State  of  California,  represent- 
ed in  Senate  and  Assembly,  do  enact  as  follows: 

§  1.  Chapters  four  and  five,  of  title  thirteen,  of 
pnrt  two,  of  the  Code  of  Civil  Procedure,  and  each 
aud  every  section  of  said  chapters  four  and  five 
(sees.  969-980),  are  hereby  repealed. 

§  2.    This  act  shall  take  effect  immediately. 


401  AGAINST   JOINT   DEBTORS. 


TITLE  XIV. 

OF  MISCELLANEOUS  PROVISIONS. 

Chapter  I.  Proceedings  against  joint  debtors. 

II.  Offer  of  the  defendant  to  compromise. 

III.  Inspection  of  writings. 

IV.  Motions  and  orders. 

V.    Notices,  and  filing,  and  service  of  pa- 
pers. 
VI.    Of  costs. 
VII.    General  provisions. 


CHAPTER  I. 

PROCEEDINGS    AGAINST   JOINT    DEBTORS. 

§  989.     Parties   not   summoned   in    action    on    joint   contract 

may  be  summoned  after  judgment. 
§  990.    Summons   in   that   case,    what   to    contain,    and   how 

served. 
§  991.    Affidavit  to  accompany  summons. 
§  992,    Answer,  when  filed  and  what  it  may  contain. 
§  993.    What  constitute  the"  pleadings  in  the  case. 
§  994.    Issues,  how  tried.     Verdict,  what  to  be. 

§  989.  When  a  .iudgment  is  recovered  against 
one  or  more  or  several  persons,  .iointly  indebted 
upon  an  obligation,  by  proceeding,  as  provided  in 
section  four  Imndred  and  fourteen,  those  Tvho  were 
not  originally  served  with  the  summons,  and  did 
not  api)ear  to  the  action,  may  be  summoned  to 
show  cause  why  they  should  not  be  bound  by  the 
.judgment  in  the  same  manner  as  though  they  had 
been  originally  served  with  the  summons. 

Cognate  provisions:  Sees.  383,  414,  579. 

Joining  persons  severally  liable  upon  instrument: 
Sec.  383. 

Summons  served  on  one  defendant  out  of  sev- 


§§  990-993  AGAINST   JOINT    DEBTORS.  402 

eral,  plaintiff  may  proceed  against  him  alone:  !Sec. 
414. 

Judgment 'against  some  defendants,  proceeding 
continuing  against  others:  Sec.  579. 

Release  of  one  joint  debtor  does  not  discharge 
others:  Civ.  Code,  sec.  1543. 

§  990.  The  summons,  as  provided  in  the  last 
section,  must  describe  the  judgment,  and  require 
the  person  summoned  to  show  cause  why  he 
should  not  be  bound  by  it,  and  must  be  served  in 
the  same  manner  and  returnable  within  the  sairie 
time  as  the  original  summons.  It  is  not  necessary 
to  file  a  new  complaint. 

Summons,  contents,  service,  etc.:  Sees.  407,  410, 
et  seq. 

§  991.  The  summons  must  be  accompanied  by 
au  affidavit  of  the  plaintiff,  his  agent,  representa- 
tive, or  attorney,  that  the  judgment,  or  some  part 
thereof,  remains  unsatisfied,  and  must  specify  the 
amount  due  thereon. 

§  992.  Upon  such  summons,  the  defendant  may 
answer  within  the  time  specified  therein,  deny- 
ing the  judgment,  or  setting  up  any  defense  which 
may  have  arisen  subsequently;  or  he  may  deny 
his  liability  on  the  obligation  upon  which  the 
judgment  was  recovered,  except  a  discharge  from 
such  liability  by  the  statute  of  limitations. 

Answer:  Sec.  437,  notes,  et  seq. 

§  993.  If  the  defendant,  in  his  answer,  deny 
the  judgment,  or  set  up  any  defense  which  may 
have  arisen  subsequently,  the  summons,  with  the 
affidavit  annexed,  and  the  answer,  constitute  the 
written  allegations  in  the  case;  if  he  deny  his 
liability  on  the  obligation  upon  which  the  judg- 


403  OFFER   TO   COMPROMISE.  §§  994,  997 

ment  was  recovered,  a  copy  of  the  original  com- 
plaint and  judgment,  the  summons,  with  the  af- 
fidavit annexed,  and  the  answer,  constitute  such 
written  allegations. 

§  994.  The  issues  formed  may  be  tried  as  in 
other  cases;  but  wlien  the  defendant  denies,  in  his 
answer,  any  liability  on  the  obligation  upon  which 
the  judgment  was  rendered,  if  a  verdict  be  found 
against  him  it  must  be  for  not  exceeding  the 
amount  remaining  unsatisfied  on  such  original 
judgment,  with  interest  thereon. 

Trial:  Sees.  607-G45. 

CHAPTER  II. 

OFFER  OP  THE  DEFENDANT  TO  COMPROMISE. 

§  997.    Proceedings  on  offer  of  the  defendant  to  compromise 
after  suit  brought. 

§  997.  The  defendant  may,  at  any  time  before 
the  trial  or  judgment,  serve  upon  the  plaintiff 
an  offer  to  allow  judgment  to  be  taken  against 
him  for  the  sum  or  property,  or  to  the  effect  there- 
in specified.  If  the  plaintiff  accept  the  offer,  and 
give  notice  thereof,  within  five  days,  he  may  file 
the  offer,  with  proof  of  notice  of  acceptance,  and 
the  clerk  must  thereupon  enter  judgment  accord- 
ingly. If  the  notice  of  acceptance  be  not  given, 
the  ofl'er  is  to  be  deemed  withdrawn,  and  cannot 
be  given  in  evidence  upon  the  trial;  and  if  the 
plaintiff  fail  to  obtain  a  more  favorable  judg- 
ment, he  cannot  recover  costs,  but  must  pay  the 
defendant's  costs  from  the  time  of  the  offer. 
[Amendment  approved  March  24,  1874;  Amerirl- 
ments  1873-4,  p.  341.     In  effect  July  1,  1874.] 

Offer,  not  an  admission:  See.  2078;  equivalent  to 
tender,  sec.  2074. 

Judgment,  by  confession:  Sec.  1132. 


§  1000  INSPECTION    OF    WRITINGS.  404 

CHAPTER  III. 

INSPECTION   OF  WRITINGS. 

§  1000.    A  party  may  demand  inspection  and  copy  of  a  book, 
paper,  etc. 

§  1000.  Any  court  in  which  an  action  is  pend- 
ing, or  a  judge  tliereof,  may,  upon  notice,  order 
either  party  to  give  to  the  other,  within  a  speoi 
fled  time,  an  inspection  and  copy,  or  permission  to 
talve  a  copy,  of  entries  of  accounts  in  any  bool?:, 
or  of  any  document  or  paper  in  his  possession,  or 
under  his  control,  containing  evidence  relating  to 
the  merits  of  the  action,  or  the  defense  therein. 
If  compliance  with  the  order  be  refused,  the  court 
may  exclude  the  entries  of  accounts  of  the  book, 
or  the  document,  or  paper  from  being  given  in 
evidence,  or  if  Avanted  as  evidence  by  the  party 
applying,  may  direct  the  jury  to  presume  them  to 
be  such  as  he  alleges  them  to  be;  and  the  court 
may  also  punish  the  party  refusing  for  a  con- 
tempt. This  section  is  not  to  be  construed  to  pre- 
vent a  party  from  compelling  another  to  produce 
books,  papers,  or  documents,  when  he  is  examined 
as  a  witness.  [Amendment  approved  -ipril  15, 
1880;  Amendments  1880,  p.  72.  In  effect  April  15, 
1880.  ] 

Items  of  an  account:  Sec.  454. 

Compelling  production  of  books,  etc.:  Sec.  1985 
et  seq.;  see,  also,  sees.  1938,  1939. 

Contempt:    Sec.   1209  et   seq. 


405  MOTIONS    AND    ORDERS.  §§  1003-lOOB 

CHAPTER  IV. 

MOTIONS  AND  ORDERS.  ! 

§  1003.  Order  and  motion  defined. 

§  1004.  Motions  and  orders,  where  made. 

§  1005.  Notice  of  motion,  at  what  time  to  be  given. 

§  1006.  Transfer  of  motions  and  orders  to  show  cause. 

§  1007.  Order  for  payment  of  money,  how  enforced. 

§  1003.  Every  direction  of  a  court  or  judge 
made  or  entered  in  writing,  and  not  included  in 
a  judgment,  is  denominated  an  order.  An  applica- 
tion for  an  order  is  a  motion. 

Ordeiv  vacating:  Sec.  937;  enforcement,  sec.  128, 
subd.  4;  renewing,  application  for,  sees.  182,  183; 
final,  effect  of  as  estoppel,  sec.  1908. 

Motion,  notice  of,  sec.  1005;  heard  before  court 
commissioners,  sec.  259,  subd.  1. 

§  1004.  Motions  must  be  made  in  the  county,  or 
city  and  county,  in  which  the  action  is  pending. 
Orders  made  out  of  court  may  be  made  by  the 
judge  of  the  court  in  any  part  of  the  State. 
[Amendment  approved  Marcli  10,  1880;  Amend- 
ments 1880,  p.  12.     In  effect  March  10,  :^680.] 

Power  of  judge  at  chambers:  Sees.  165,  166,  176; 
court  commissioner's  control  of  ex  parte  motions, 
sec.  259,  subd.  1. 

§  1005.  When  a  written  notice  of  a  motion  is 
necessary,  it  must  be  given,  if  the  court  be  held 
in  the  same  county,  or  city  and  county,  with  both 
parties,  live  days  before  the  time  appointed  for 
the  hearing:  otherwise,  ten  days.  When  the  no- 
tice is  served  by  mail,  the  number  of  days  before 
the  hearing  must  be  increased  one  day  for  every 
twenty-five  miles  of  distance  between  the  place  of 
deposit  and  the  place  of  service;  such  increase. 


§§  1006,  1007  MOTIONS    AND    ORDERS.  406 

however,  not  to  exceed  in  all  thirty  days;  but  in 
all  eases  the  court,  or  a  judge  thereof,  may  pre- 
scribe a  shorter  time.  [Amendment  approved 
March  10,  1880;  Amendments  1880,  p.  13.  in  ef- 
fect Miivch  10,  1880.] 

Written,  notice  must  be:  Sec.  1010;  order  made 
without  notice,   sec.  937. 

Service,  of  papers,  generally:  Sec.  1010  et  seq. 

§  1006.  When  a  notice  of  motion  is  given,  or 
an  order  to  show  cause  is  made  returnable,  before 
a  judge  out  of  court,  and  at  the  time  fixed  for  iho 
motion,  or  on  the  return  day  of  the  order,  the 
judge  is  unable  to  hear  the  parties,  the  matter 
may  be  transferred  by  his  order  to  some  other 
judge,  before  whom  it  might  originally  have  been 
brought. 

Notice  of  motion:   Sec.   1005. 

§  1007.  Whenever  an  order  for  the  payment  of 
a  sum  of  money  is  made  by  a  court,  pursuant  to  the 
provisions  of  this  Code,  it  may  be  enforced  by 
execution  in  the  same  manner  as  if  it  weif^  a 
judgment. 

Enforced  by  execution:  Sec.  681  et  seq.;  ocii- 
tempt,  sec.  1209  et  seq. 


407  NOTICES,    SERVICE   OP   PAPERS.   §§  1010,  1011 

CHAPTER  V. 

NOTICES,   AND   FILING  AND   SERVICE   OF  PAPERS. 

§  1010.    Notices  and  papers,  how  served. 

§  1011.    When  and  how   served. 

§  1012.     Service  by  mail,  when. 

§  1013.     Service  by  mail,   how. 

§  1014.    Appearance.     Notices  after  appearance. 

§  1015.     Service    on   non-residents.     Where   a  party  has   an 

attorney,  service  shall  be  on  such  attorney, 
§  1016.     Preceding  provisions  not  to  apply  to  proceeding  to 

bring  party  into   contempt. 
§  1017.     Service  by  telegraph. 

§  1010.  Notices  must  be  in  writing,  and  no- 
tices and  other  papers  may  be  served  upon  the 
party  or  attorney  in  the  manner  prescribed  in  tliis 
cliapter,  when  not  otherwise  provided  by  this 
Code. 

§  1011.  The  service  may  be  personal,  by  de- 
livery to  the  party  or  attorney  on  whom  the  ser- 
vice is  required  to  be  made,  or  it  may  be  as  fol- 
lows: 

1.  If  upon  an  attorney,  it  may  be  made  during 
his  absence  from  his  office,  by  leaving  the  notice 
or  other  papers  with  his  clerk  therein,  or  with 
a  person  having  charge  thereof;  or  when  there  is 
no  person  in  the  office,  by  leaving  them  between 
the  hours  of  eight  in  the  morning  and  six  in  the 
afternoon,  in  a  conspicuous  place  in  the  ofJ:ce: 
or  if  It  be  not  open  so  as  to  admit  of  such  servi'-'e, 
then  by  leaving  them  at  the  attorney's  residence, 
with  some  person  of  suitable  age  and  discretion, 
and  if  his  residence  be  not  known,  then  by  put- 
ting the  same,  inclosed  in  an  envelope,  into  tiie 
postoffice,   directed  to  such  attorney; 

2.  If  upon  a  party,  it  may  be  made  by  leaving 
the  notice  or  other  paper  at  his  residence,  between 


§§  1012,1014    NOTICE,     SERVICE    OF    PAPERS.  408 

the  hours  of  eight  in  the  morning  and  six  in  the 
evening,  with  some  person  of  suitable  age  and  dis- 
cretion; and  if  his  residence  be  not  known,  by 
putting  the  same,  inclosed  in  an  envelope,  into  the 
postoffice,  directed  to  such  party. 
Service,  on  attorney:  Sec.  1015. 

§  1012.  Service  by  mail  may  be  made,  where 
the  person  making  the  service,  and  the  person  on 
Avhom  it  is  to  be  made,  reside  or  have  their  of- 
fices in  diiferent  places,  between  which  there  is  a 
regular  communication  by  mail.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4.  p. 
343.     In  effect  July  1,  1874.] 

§  1013.  In  case  of  service  by  mail,  the  notice 
or  other  paper  must  be  deposited  in  the  postoffice, 
addressed  to  the  person  on  whom  it  is  to  be  served, 
at  his  office  or  place  of  residence,  and  the  postage 
paid.  The  service  is  complete  at  the  time  of  the 
deposit,  but  if  within  a  given  number  of  days 
after  such  service  a  right  may  be  exercised,  or  an 
act  is  to  be  done  by  the  adverse  party,  the  time 
within  which  such  right  may  be  exercised  or  act 
be  done  is  extended  one  day  for  every  twenty- 
five  miles  distance  between  the  place  of  deposit 
and  the  place  of  address;  such  extension,  however, 
not  to  exceed  ninety  days  in  all.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  p.  343. 
In  effect  July  1,  1874.] 

Distance:   Sec.   1005. 

§  1014.  A  defendant  appears  in  an  action  when: 
he  answers,  demurs,  or  gives  the  plaintiff  writ- 
ten notice  of  liis  appearance,  or  when  an  attorney 
gives  notice  of  appearance  for  him.  After  appear- 
ance, a  defendant  or  his  attorney  is  entitled  to  ao 
tice  of  all  subseciuent  proceedings  of  whicli  nolice 


409  NOTICE,     SERVICE    OP    PAPERS.    §§  1015-1017 

is  required  to  be  given.  But  where  a  defendant 
has  not  nppeared.  servioo  of  notice  of  papers  need 
not  be  made  upon  him  unless  he  is  imprisoned  for 
AN'ant  of  bail. 

Appearance,  waiver  of  summons:  Sees.  406,  416. 

Notice  of  subsequent  proceedings,  how  given: 
8ec.  1015. 

§  1015.  When  a  plaintiff  or  a  defendant,  who 
has  appeared,  resides  out  of  the  State,  and  lias 
no  attorney  in  tlie  action  or  proceeding,  tlie  service 
may  be  made  on  the  cierlv  for  him.  But  in  all 
cases  where  a  party  has  an  attorney  in  the  acHon 
or  jH-oceeding,  the  service  of  papers,  when  re 
quired,  must  be  upon  the  attorney  instead  of  the 
party,  except  of  subpoenas,  of  writs,  and  other 
process  issued  in  the  suit,  and  of  papers  to  bring 
liini  into  contempt. 

Attorney,  authority  of:  Sec.  283;  duties  of,  sec. 
282;  disbarred,  when,  see  sees.  287  to  299. 

Service,  hoAv  made:  Sec.  1011. 

Exception  of  process  and  contempt:  Sec.  1016. 

§  1016.  The  foregoing  provisions  of  this  chap- 
ter do  not  apply  to  the  service  of  a  summons  or 
otlier  process,  or  of  any  paper  to  bring  a  party 
into  contempt. 

§  1017.  Any  summons,  writ,  or  order,  in  any 
civil  suit  or  proceeding,  and  all  other  papers  re- 
quiring service,  may  be  transmitted  by  telegraph 
for  service  in  any  place,  and  the  telegrapiiic  ropy 
of  such  writ,  or  order,  or  paper,  so  transmitted, 
may  be  served  or  executed  by  the  officer  or  person 
to  whom  it  is  sent  for  that  purpose,  and  returned 
by  him,  if  any  return  be  requisite,  in  the  same 
manner,  and  with  the  same  force  and  effect,  in  all 
respects,  as  the  original  thereof  might  be  if  de 

Code  Civ.   Proc— 35. 


§  1017  NOTICE,    SERVICE    OP    PAPERS.  410 

livered  to  hira;  and  the  oflBcei*  or  person  serving 
or  executing  the  same  has  the  same  authority,  and 
is  subject  to  the  same  liabilities,  as  if  the  co]:y 
were  the  original.  The  original,  when  a  writ  or 
order,  must  also  be  filed  in  the  court  from  which 
it  was  issued,  and  a  certified  copy  thereof  must 
be  preserved  in  the  telegraph  office  from  which  it 
was  sent.  In  sending  it,  either  the  original  or  the 
certified  copy  may  be  used  by  the  operator  tor  that 
purpose.  Whenever  any  document  to  be  sent  by 
telegraph  bears  a  seal,  either  private  or  official, 
it  is  not  necessary  for  the  operator,  in  send'ug 
the  same,  to  telegraph  a  description  of  the  seal, 
or  any  words  or  device  thereon,  but  the  same  may 
be  expressed  in  the  telegraphic  copy  by  the  let- 
ters "L.  S."  or  by  the  word  "seal." 


411  OP   COSTS.  $  1021 

CHAPTER  VI. 

OF    COSTS. 

§  1021.     Compensation   of   attorneys.     Costs   to   parties. 

§  1022.    When  allowed,  of  course,  to  the  plaintiff. 

§  1023.  Several  actions  brought  on  a  single  cause  of  action 
can  carry  costs  in  but  one. 

§  1024.  Defendant's  costs  must  be  allowed,  of  course,  in 
certain  cases. 

§  1025.     Costs,  when  in  the  discretion  of  the  court. 

§  1026.  When  the  several  defendants  are  not  united  in  in- 
terest,   costs   may   be   served. 

§  1027.  Costs  of  appeal  discretionary  with  the  court,  in 
certain   cases. 

§  1028.     Referee's  fees. 

§  1029.     Continuance,  costs  may  be  imposed  as  condition  of. 

§  1030.     Costs  when  a  tender  is  made  before  suit  brought. 

§  1031.     Costs  in  action  by  or  against  an  administrator,  etc. 

§  1032.     Costs  in  a  review  other  than  by  appeal. 

§  1033.     Filing  of,  and  affidavit,  to  bill  of  costs. 

§  1034.    Costs  on  appeal,  how  claimed  and  recovered. 

§  1035.  Interest  and  costs  must  be  included  by  the  clerk 
in   the   judgment. 

§  1036.  When  plaintiff  is  a  non-resident  or  foreign  corpora- 
tion, defendant  may  require  security  for  costs. 

§  1037.  If  such  security  be  not  given,  the  action  may  be  dis- 
missed. 

§  1038.     Costs  when  State  is  a  party. 

§  1039.    Costs  when  county  is  a  party. 

§  1021.  The  measure  aiid  mode  of  compensa- 
tion of  attorneys  and  counsellors  at  law  is  left  to 
the  agreement,  express  or  implied,  of  the  part'es; 
but  parties  to  actions  or  proceedings  are  entitled 
to  costs  and  disbursements,  as  hereinafter  pro- 
vided. 

Foreclosure,  counsel  fees  on:  Sec.  1500.  See  post 
appendix,  p.  8G3. 

Contested  election,  costs:  See  sec.  1125. 

Eminent  domain,  costs:  Sec.  1255.  Action  on 
fencing-bond,   counsel  fees:   Sec.   1251. 

^Mechanics'  liens.— Costs  and  counsel  fees:  Sec. 
1195. 


§§1022,  1023  OF  COSTS.  412 

Partition.— Costs  and  counsel  fees:  Sees.  768, 
796,  798,  801. 

Probate  matters.— Attorneys'  fees:  Sec.  1718. 
Costs  as  to  homestead,  etc.:  Sec.  1485;  revocation 
of  probate:  Sec.  1332. 

Shorthand  reporter's  fees:    Sec.  274. 

Executor,  etc. — Costs  in  actions  against:  Sec. 
1509;  on  reference,  sec.  1508;  when  claim  allowed 
in  part,  sec.  1503;  action  by  executor  against  es- 
tate, sec.  1510;  winding  up  estate,  sec.  1616. 

§  1022.  Costs  are  allowed,  of  course,  to  the 
plaintiff,  upon  a  judgment  in  his  favor,  in  the  fol- 
lowing cases: 

1.  In  an  action  for  the  recovery  of  real  prop- 
erty: 

2.  In  an  action  to  recover  the  possession  of 
personal  property,  where  the  value  of  the  prop- 
erty amounts  to  three  hundred  dollars  or  over; 
such  value  shall  be  determined  by  the  jury,  court, 
or  referee  by  whom  the  action  is  tried; 

3.  In  an  action  for  tlie  recovery  of  money  or 
damages,  when  plaintiff  recovers  three  hundred 
dolars  or  over; 

4.  In  aspecial  proceeding; 

5.  In  an  action  which  involves  the  title  or  pos- 
session of  real  estate,  or  the  legality  of  any  tax. 
impost,  assessment  toll,  or  municipal  fine. 

Costs  discretionary,  when:  Sees.  1025,  1027. 

Subdivision  2.  Personal  property,  value:  Sec. 
1025.  z 

Subdivision  3.    Money  or  damages:   Sec.  1025. 

Subdivision  4.  Special  proceeding,  generally: 
Sees.  1063-1822. 

Act  requiring  securityfor  costs  in  libel  and  slan- 
der: See  post,  Appendix,  p.  861. 

§  1023.  When  several  actions  are  brought  on 
one  bond,  undertali;ing,  promissory  note,  bill  of  ex- 


413  OF  COSTS.  §§  1024-1023 

change,  or  other  iiistrument  in  writing,  or  in  any 
other  case  for  the  same  cause  of  action,  against 
several  parties  who  might  have  been  joined  as  de- 
fendants in  tlie  same  action,  no  costs  can  be  al- 
lowed to  the  plaintiff  in  more  than  one  of  such 
actions,  which  may  be  at  his  election,  if  the  party 
proceeded  against  in  the  other  actions  were,  at  the 
commencement  of  the  previous  action,  openly 
within  this  State;  but  the  disbursements  of  the 
plaintiff  must  be  allowed  to  him  in  each  action. 

Several  parties,  who  might  have  been  jojned  as 
defendants:  Sec.  383. 

§  1024.  Costs  must  be  allowed,  of  course,  to  the 
defendant,  upon  a  judgment  in  his  favor  in  the 
actions  mentioned  in  section  ten  hundred  and 
twenty-two,  and  in  special  proceedings. 

Special  proceedings:  Sees.  1063-1822. 

§  1025.  In  other  actions  than  those  mentioned 
In  section  ten  hundred  and  tweuty-two,  costs  may 
be  allowed  or  not,  and,  if  allowed,  may  be  appor- 
tioned between  the  parties,  on  the  same  or  adverse 
sides,  in  the  discretion  of  the  court;  but  no  costs 
can  be  allowed  in  an  action  for  the  recovery  of 
money  or  damages  when  tlie  plaintiff  recovers  less 
than  three  hundred  dollars,  nor  in  an  action  to 
recover  the  possession  of  personal  property,  when 
the  value  of  the  property  is  less  than  three  hun- 
dred dollars. 

Arbitration  and  award,  costs  on:  See  post,  sec. 
12SG. 

§  1026.  When  there  are  several  defendants  in 
the  actions  mentioned  in  section  ten  hundred  and 
twenty-two,  not  united  in  interest,  and  making 
separate  defenses  by  separate  answers,  and  plain- 
tiff fails  to  recover  judgment     against     all,   the 


§§  1027-1030  OF   COSTS.  414 

court  must  award  costs  to  such  of  the  defendants 
as  have  judgmeut  in  their  favor. 

Judgment  for  some  defendants:  Sec.  578. 
Several  defendants:   See  sec.   1023. 

§  1027.  In  the  following  cases,  the  costs  of  ap- 
peal are  in  the  discretion  of  the  court: 

1.  When  a  new  trial  is  ordered; 

2.  When  a  judgment  is  modified. 
p, 

§  1028.  The  fees  of  referees  are  five  dollars 
to  each  for  every  day  spent  in  the  business  of  the 
reference;  but  the  parties  may  agree,  in  writing, 
upon  liny  other  rate  of  compensation,  and  there- 
upon such  rate  shall  be  allowed. 

Reference,  generally:  Sees.  638-645. 
Referees  in  partition,  compensation  of:  Sees.  768, 
796. 

§  1029.  When  an  application  is  made  to  a  court 
or  referee  to  postpone  a  trial,  the  payment  of  costs 
occasioned  by  the  postponement  may  be  imposed, 
in  the  discretion  of  the  court  or  referee,  as  a  con- 
dition of  granting  the  same. 

Postponement,  generally:  Sees.  595,  596. 

§  1030.  When,  in  an  action  for  the  recovery  of 
money  only,  the  defendant  alleges  in  his  answer 
that  before  the  commencement  of  the  action,  he 
tendered  to  the  plaintiff  the  full  amount  to  which 
he  was  entitled,  and  thereupon  deposits  in  court 
for  plaintiff  the  amount  so  tendered,  and  the  alle- 
gation be  found  to  be  true,  the  plaintiff  cannot  re- 
cover costs,  but  must  pay  costs  to  the  defendant. 

Tender:  Sec.  2076. 

Offer  to  compromise:  Sec.  997. 

Deposit  in  court:  Sees.  572-57-1;  sec.  1024, 


415  OF  COSTS.  §§  1031-1033 

§  1031.  In  an  action  prosecuted  or  defended 
by  an  executor,  administrator,  trustee  of  express 
trust,  or  a  person  expressly  authorized  by  statute, 
costs  may  be  recovered  as  in  action  by  and 
against  a  person  prosecuting  or  defending,  in  his 
own  right;  but  such  costs  must  by  the  judgment 
be  made  chargeable  only  upon  the  estate,  fund,  or 
party  represented,  unless  the  court  directs  the 
same  to  be  paid  by  the  plaintiff  or  defendant,  per- 
sonally, for  mismanagement  or  bad  faith  in  the 
action  or  defense. 

Costs  against  executor,  etc.:  Sees.  1508,  1509. 

§  1032.  When  the  decision  of  a  court  of  in- 
ferior jurisdiction  in  a  special  proceeding  is 
brought  before  a  court  of  higher  jurisdiction  for 
a  review,  in  any  other  way  than  by  appeal,  the 
same  costs  must  be  allowed  as  in  cases  on  appeal, 
and  may  be  collected  by  execution,  or  in  such 
manner  as  the  court  may  direct,  according  to  the 
nature  of  the  case. 

Special  proceedings,  generally:  Sees.  1063-1822. 

Decision  of  inferior  court  reviewed:  Sees.  1067- 
1110. 

Costs  on  appeal:  Sees.  1027,  1034. 

§  1033.  The  party  in  whose  favor  judgment  is 
rendered,  and  who  claims  his  costs,  must  deliver 
to  the  clerk,  and  serve  upon  the  adverse  party, 
within  five  days  after  the  verdict  or  notice  of  the 
decision  of  the  court  or  referee— or,  if  the  entry  of 
the  judgment  on  the  verdict  or  decision  be  stayed, 
then  before  such  entry  is  made— a  memorandum  of 
the  items  of  his  costs  and  necessary  disbursements 
in  the  action  or  proceeding,  which  memorandum 
must  be  verified  by  the  oath  of  the  party,  or  his 
attorney  or  agent,  or  by  the  clerk  of  his  attorney, 
stating  that  to  the  best  of  his  knowledge  and  be- 


§§  1034-1036  OP  COSTS.  416 

lief  the  items  are  correct,  and  tliat  the  disburse- 
ments have  been  necessarily  incurred  in  the  action 
or  proceeding.  A  party  dissatislied  with  the  costs 
claimed,  may,  within  live  days  after  notice  of  fil- 
ing of  the  bill  of  costs,  file  a  motion  to  have  the 
same  taxed  by  the  court  in  which  the  judgment 
was  rendered,  or  by  the  judge  thereof  at  cham- 
bers. [Amendment  approved  March  24,  1874; 
Amendments  1878-4,  p.  343.  In  effect  July  1, 
1874.] 
Shorthand  reporter's  fees:  Sec.  274. 

§  1034.  Whenever  costs  are  awarded  to  a  party 
by  an  appellate  court,  if  he  claims  such  costs,  he 
must,  within  thirty  days  after  the  remittitur  is 
filed  with  the  clerli  below,  deliver  to  such  cleric  a 
memorandum  of  his  costs,  verified  as  prescribed 
by  the  preceding  section,  and  thereafter  he  may 
have  an  execution  therefor  as  upon  a  judgment. 

Remittitur:  Sec.  958. 

§  1035.  The  clerk  must  include  in  the  judgment 
entered  up  by  him,  any  interest  on  the  verdict  or 
decision  of  tlie  court,  from  the  time  it  was  ren- 
dered or  made,  and  the  costs,  if  the  same  have 
been  taxed  or  ascertained;  and  he  must,  within 
two  days  after  the  same  are  taxed  or  ascertained, 
if  not  included  in  the  judgment,  insert  the  same 
in  a  blanlv,  left  in  the  judgment  for  that  purpose, 
and  must  make  a  similar  insertion  of  the  costs 
in  the  copies  and  docket  of  the  judgment. 

§  1036.  When  the  plaintiff  in  an  action  resides 
out  of  the  State,  or  is  a  foreign  corporation,  secu- 
rity for  the  costs  and  charges,  which  may  be 
awarded  against  such  plaintiff,  may  be  required 
by  the  defendant.  When  required,  all  proceed- 
ings in  the  action  must  be  stayed  until  an  under- 
taking, executed  by  two  or  more  persons,  is  filed 


417  OP  COSTS.  §§  1037-1039 

with  the  clerk,  to  the  effect  that  they  Avill  pay 
such  costs  and  charges  as  may  be  awarded 
against  the  plaintiff  by  judgment,  or  in  the  pro- 
gress of  the  action,  not  exceeding  the  sum  of  three 
hundred  dollars.  A  new  or  an  additional  under- 
taking may  be  ordered  by  the  court  or  judge,  upon 
proof  that  the  original  undertaking  is  insufficient 
security,  and  proceedings  in  the  action  stayed  un- 
til such  new  or  additional  undertaking  is  exe- 
cuted and  filed. 
Qualification  of  sureties:  Sec.  1057. 

§  1037.  After  the  lapse  of  thirty  days  from  the 
service  of  notice  that  security  is  required,  or  of 
an  order  for  new  or  additional  security,  upon 
proof  thereof,  and  that  no  undertaking  as  re- 
quired has  been  filed,  the  court  or  judge  may  or- 
der the  action  to  be  dismissed. 

§  1038.  When  the  State  is  a  party,  and  costs 
are  awarded  against  it,  they  must  be  paid  out  of 
the  State  treasury. 

No  security  required  of  State:  Sec.  1058. 

§  1039.  When  a  county  is  a  party,  and  costs 
are  awarded  against  it,  they  must  be  paid  out  of 
the  county  treasury. 

No  security  required  of  county:  Sec.  1058. 


§§  1045-1047  GENERAL    PROVISIONS.  418 

CHAPTER  VII. 

GENERAL  PROVISIONS. 

§  1045.    Lost  papers,  how  supplied. 

§  1046.  Papers  witbout  the  title  of  the  action,  or  with  de- 
fective title,   may  be  valid. 

§  1047.     Successive  actions  on  the  same  contract,  etc. 

§  1048.    Consolidation  of  several  actions  into  one. 

§  1049.    Actions,   when  deemed  pending. 

§  1050.  Actions  to  determine  adverse  claims,  and  by  sure- 
ties. 

§  1051.    Testimony,  when  to  be  taken  by  the  clerk. 

§  1052.     The  clerk  must  keep  a  register  of  actions. 

§  1053.     Two  or  three  referees,   etc.,   may  do  any  act. 

§  1054.  The  time  within  which  an  act  is  to  be  done  may  be 
extended. 

§  1055.    Actions  against  a  sheriff  for  official  acts. 

§  1056.  Actions  may  be  prosecuted  in  the  Spanish  language 
in  certain  counties. 

§  1057.    Undertaking  mentioned  in  this  Code,  requisites  of. 

§  1058.  People  of  State  not  required  to  give  bonds  when 
State  is  a  party. 

§  1059.  Surety  on  appeal  substituted  to  rights  of  judgment 
creditor. 

§  1045.  If  an  original  pleading  or  paper  be 
lost,  the  court  may  authorize  a  copy  thereof  to  be 
filed  and  used  instead  of  the  original. 

Lost  certificates  of  deposit,  statute  relating  to 
actions  on:  See  post.  Appendix,  p.  874. 

§  1046.  An  alfidavit,  notice,  or  other  paper, 
Avithout  tlie  title  of  the  action  or  proceeding  in 
which  it  is  made  or  with  a  defective  title,  is  as 
valid  and  effectual  for  any  purpose  as  if  duly  en- 
titled, if  it  intelligibly  refer  to  such  action  or  pro- 
ceeding. 

§  1047.  Successive  actions  may  be  maintained 
upon  the  same  contract  or  transaction,  whenever, 
after  the  former  action,  a  new  cause  of  action 
arises  therefrom. 

Action  defined:  Sec.  22. 


419  GENERAL    PROVISIONS.  §§  1048-1053 

§  1048.  Whenever  two  or  more  actions  are 
pending  at  one  time  between  the  same  parties  and 
in  the  same  court,  upon  causes  of  action  which 
might  have  been  joined,  the  court  may  order  the 
actions  to  be  consolidated. 

§  1049.  An  action  is  deemed  to  be  penanig 
from  the  time  of  its  commencement  until  its  final 
determination  upon  appeal,  or  until  the  time  for 
appeal  has  passed,  unless  the  judgment  is  sooner 
satisfied. 

§  1050.  An  action  may  be  brought  by  one  per- 
son against  another  for  the  purpose  of  deter- 
mining an  adverse  claim,  which  the  latter  malies 
agamst  the  former  for  money  or  property  upon  an 
alleged  obligation;  and  also  against  two  or  more 
persons,  for  the  purpose  of  compelling  one  to  sat- 
isfy a  debt  due  to  the  other,  for  which  plaintiff 
is  bound  as  a  surety. 

Quieting  title  to  realty:  Sec.  738. 

§  1051.  On  the  trial  of  an  action  in  a  court  of 
record,  if  there  is  no  shorthand  reporter  of  the 
court  in  attendance,  either  party  may  require  the 
clerk  to  take  down  the  testimony  in  writing. 

§  1052.  The  clerk  must  keep  among  the  records 
of  the  court  a  register  of  actions.  He  must  enter 
therein  the  title  of  the  action,  with  brief  notes 
under  it,  from  time  to  time,  of  all  papers  filed 
and  proceedings  had  therein. 

Records  of  the  court:  See  sees.  6G8,  672,  683. 

§  1053,  When  there  are  three  referees,  or 
tliree  arbitrators,  all  must  meet,  but  two  of  them 
may  do  any  act  which  might  be  done  by  all. 

References  and  trials  by  referees:  Sees.  638-645. 


§§  1054,  1055  GENERAL   PROVISIONS.  420 

§  1054.  When  an  act  to  be  done,  as  provided  in 
tliis  Code,  relatey  to  the  pleadings  in  the  action, 
or  the  undertakings  to  be  filed,  or  the  justification 
of  sureties,  or  the  preparation  of  statements,  or  of 
bills  of  exceptions,  or  of  amendments  thereto,  or 
to  the  service  of  notices  other  than  of  appeal,  the 
time  allowed  by  this  Code  may  be  extended,  upon 
good  cause  shown,  by  the  judge  of  the  Superior 
Court  in  and  for  the  county  in  which  the  action 
is  pending,  or  by  the  judge  who  presided  at  the 
trial  of  said  action;  but  such  extension  shall  not 
exceed  thirty  days,  without  the  consent  of  the 
adverse  party;  except  that  when  it  appears  to  the 
judge  to  whom  said  application  is  made,  that  the 
attorney  of  record  for  the  party  applying  for  said 
extension  is  actually  engaged  in  attendance  upon 
a  session  of  the  legislature  of  this  State,  as  a 
member  thereof;  in  which  case  it  shall  be  the 
duty  of  said  judge  to  extend  said  time  until  said 
session  of  the  legislature  adjourns,  and  thirty 
days  thereafter.  [Amendment  approved  January 
31,  1895;  Stats.  1895,  p.  12.  In  effect  January  31, 
1895.] 

Time,  order  extending.— Time,  generally:  Sees. 
10-13. 

Computation  of  time:  See  ante,  sec.  12. 

§  1055.  If  an  action  be  brought  against  a  sher- 
ifi.'  for  an  act  done  by  virtue  of  his  office,  and  he 
give  written  notice  thereof  to  the  sureties  on  any 
bond  of  indemnity  received  by  him,  the  judgment 
I'ecovered  therein  shall  be  conclusive  evidence  of 
liis  right  to  recover  against  such  sureties;  and  the 
court  ma3%  on  motion,  upon  notice  of  five  days, 
order  judgment  to  be  entered  up  against  them 
for  the  amount  so  recovered,  including  costs. 
[Amendment  approved  April  15,  1880;  Amend- 
ments 1880.  p.  73.     In  effect  April  15,  1880.] 


421  GENERAL    PROVISIONS.  §  1056 

§  1056,  In  all  cases  where  an  undertaking  or 
bond,  with  any  number  of  sureties,  is  authorized 
or  required  by  any  provision  of  this  Code,  or  of 
any  law  of  this  State,  any  corporation  with  a  paid 
up  capital  of  not  less  than  one  hundred  thousand 
dollars,  incorporated  under  the  laws  of  this  or 
any  other  State  of  the  United  States  for  the  pur- 
pose of  malvin.i;-,  guaranteeing,  or  becoming  a  sure- 
ty upon  bonds  or  undertalvings  required  or  author- 
ized by  law,  or  which,  by  the  laws  of  the  State 
where  it  was  originally  incorporated  has  such 
power,  and  which  shall  have  complied  with  all  the 
requirements  of  the  law  of  this  State  regulating 
the  formation  or  admission  of  these  corporations  to 
transact  such  business  in  this  State,  may  become 
and  shall  be  accepted  as  security  or  as  sole  and 
sufficient  surety  upon  such  undertalving  or  bond, 
and  such  corporate  surety  shall  be  subject  to  all 
the  liabilities  and  entitled  to  all  the  rights  of 
natural  persons'  sureties;  provided,  that  the  in- 
surance commissioner  shall  have  the  same  juris- 
diction and  powers  to  examine  the  affairs  of  such 
corporations  as  he  has  in  other  cases;  shall  re- 
quire them  to  file  similar  statements  and  issue  to 
thein  a  similar  certificate.  And  Avhenever  the 
liabilities  of  any  such  corporation  shall  exceed 
its  assets,  the  insurance  commissioner  shall  re- 
quire the  deficiency  to  be  paid  up  in  sixty  days, 
and  if  it  is  not  so  paid  up,  then  he  shall  issue  a 
certificate  showing  the  extent  of  such  deficiency, 
and  he  sliall  publish  the  same  once  a  week  for 
three  weeks,  in  a  daily  San  Francisco  paper.  And, 
until  such  deficiency  is  paid  up,  such  company 
shall  not  do  business  in  this  State.  In  estimating 
the  condition  of  any  sucli  company,  the  commis- 
sioner shall  allow  as  assets  only  such  as  are  al- 
lowed under  existing  laws  at  the  time,  and  shall 
ehaige    as    linbilities,    in    addition   of   eighty   per 

Code  Civ.  Proc  —36. 


§  1057  GENERAL    PROVISIONS.  422 

cent  of  the  capital  stock,  all  outstanding  indebted- 
ness of  the  companj^  and  a  premium  reserve  equal 
to  iifty  per  centum  of  the  premiums  charged  by- 
said  company  on  all  risks  then  in  force.  [New 
section  added  March,  1SS9;  Stats.  1889,  p.  215.  In 
effect  March  IG,  1880.] 

Section  105G,  relating  to  prosecuting  actions  in 
the  Spanish  language  in  certain  counties,  was  re- 
pealed by  act  of  April  IG,  1880;  Amendments  1880, 
111  (Ban.  ed.  347).     Took  effect  immediately. 

§  1057.  In  any  case  where  an  undertaking  or 
bond  is  authorized  or  required  by  any  law  of  this 
State,  the  officer  taking  the  same  must,  except  in 
the  case  of  such  a  corporation  as  is  mentioned  in 
the  next  preceding  section,  require  the  sureties 
to  accompany  it  with  an  affidavit  that  they  are 
each  residents  and  householders,  or  freeholders, 
witliin  the  State,  and  are  each  worth  the  sum  spe- 
cified in  the  undertaking  or  bond,  over  and  above 
all  their  just  debts  and  liabilities,  exclusive  of 
property  exempt  from  execution;  but  when  the 
amount  specified  in  the  undertaking  or  bond  ex- 
ceeds three  thousand  dollars,  and  there  are  more 
than  two  sureties  thereon,  they  may  state  in  their 
affidavits  that  they  are  severally  worth  amounts 
less  than  the  amount  specified  in  the  undertaking 
or  bond,  if  the  whole  amount  be  equivalent  to  that 
of  two  sufficient  sureties.  Any  corporation  such 
as  is  mentioned  in  the  next  preceding  section,  may 
become  one  of  such  sureties.  No  such  corporation 
shall  be  accepted  in  any  case  as  a  surety  when- 
ever its  liabilities  shall  exceed  its  assets  as  ascer- 
tained in  the  manner  provided  in  section  ten  hun- 
dred and  fifty-six.  [Amendment  approved  March 
IG,  1880:  Amendments  1889,  p.  21 G.  In  effect 
March  IG,  1SS9.] 

Propei-ty  exempt  from  execution:  Sec.  GOO. 

Applied  to  guardians:  Sec.  1809. 


423  GENERAL    PROVISIONS  §§  1058,  1059 

§  1058.  lu  any  civil  action  or  proceeding 
wherein  the  State,  or  the  people  of  the  State,  is  a 
party  plaintiff,  or  any  State  ofhcer,  in  his  official 
capacity,  or  in  behalf  of  the  State,  or  any  county, 
city  and  county,  city,  or  town,  is  a  party  plaintiff 
or  defendant,  no  bond,  written  undertaking,  or  se- 
curity can  be  required  of  the  State,  or  the  people 
thereof,  or  any  officer  thereof,  or  of  any  county,, 
city  and  county,  city,  or  town;  but  on  complying 
with  the  other  provisions  of  this  Code,  the  State, 
or  the  people  thereof,  or  any  State  officer  acting 
in  his  official  capacity,  have  the  same  rights,  rem- 
edies, and  benefits  as  if  the  bond,  undertaliing, 
or  security  were  given  and  approved  as  required 
by  this  Code.  [New  section  approved  April  15, 
1880:  Amendments  1880,  p.  76.  In  effect  April  15, 
1880.] 

Costs  against  State  or  county:  Sees.  1038,  1039. 

§  1059.  Whenever  any  surety  on  an  undertak- 
ing on  appeal,  executed  to  stay  proceedings  upon 
a  money  judgment,  pays  the  judgment,  either  with 
or  without  action,  after  its  affirmation  by  the  ap- 
pellate court,  he  is  substituted  to  the  rights  of  the 
judgment  creditor,  and  is  entitled  to  control,  en- 
force, and  satisfy  such  judgment  in  all  respects  as 
if  he  had  recovered  the  same.  [New  section  ap- 
proved March  24,  1874;  Amendments  1873-4,  p. 
344.     In   effect   July   1,    1874.] 


PART   III 

OF     SPECIAL     PKOOEBDINGS    OF    A    CIVIL 
NATURE. 


Title  I.    Of  Writs  of  Mandate  and  Prohibition,  §§ 
1067-1110. 
II.    Of  Contesting  Elections.  §§   1111-1127. 
III.    Of   Summary   Proceedings,    §§  1232-1178. 
TV.    Of  Enforcement  of  Liens,  §§  1180-1206. 

V.    Of  Contempt,   §§  1209-1222. 
\I.    Of  Voluntary  Dissolution  of  Corporations, 

§§   1227-1223. 
VII.    Of  Eminent  Domain,  §§  1237-1263. 
VITI.    Of  Escheated  Estates,  §§  1269-1272. 
IX.    Of  Change  of  Name,  §§  1275-1278. 
X.    Of  Arbitrations,  §§  1281-1290. 
XI.    Of     Proceedings     in  Probate    Courts,  §§ 
1294-1809. 
XII.    Of  Sole  Traders,  §§  1811-1821. 


PRELIMINARY    PROVISIONS. 

§  1063.     Parties,  how  designated. 

§  1064.    Judgment  and  order  same  meaning    as  in  civil  ac- 
tions. 

§  1063.  The  party  prosecuting  a  special  pro- 
ceeding may  be  known  as  the  plaintiff,  and  the 
adverse  party  as  the  defendant. 

Plaintiff  and  defendant:  Sec.  308. 


4 


425  WRIT    OF    REVIEW.  §§  1064,  1067 

§  1064.  A  judgment  in  a  special  proceeding  is 
the  final  determination  of  the  rights  of  the  par- 
ties therein.  The  definitions  of  a  motion  and  an 
order  in  a  civil  action  are  applicable  to  similar  acts 
in  a  special  proceeding. 

Judgment,  definition  of:  Sec.  577. 

Motion  and  order:  Sec.  1003. 


TITLE  I. 

OF  WRITS   Of    review,    MANDATE    AND    PROHIBITION. 

Chapter  I.  Writ  or  review. 

II.  "Writ  of  mandate. 

III.  Writ  of  prohibition. 

IV.  Writs  of  review,  mandate,  and  prohi- 

bition  may  issue  and  be  heard   at 
chambers. 
V.    Rules  of  practice  and  appeals. 

CHAPTER  I. 

WRIT    OP    REVIEW. 

§  1067.    Writ  of  review  defined. 

§  1068.    When  and  bv  what  courts  granted. 

§  1069.    Application  for,   how  made. 

§  1070.    The  writ  to  be  directed  to  the  inferior  tribunal,  etc. 

§  1071.     Contents   of  the  writ. 

§  1072.  Proceedings  in  inferior  court  may  be  stayed,  or 
not. 

§  1073.    Service  of  the  writ. 

§  1074.    The  review  under  the  writ,  extent  of. 

§  1075.  A  defective  return  of  the  writ  may  be  perfected. 
Hearing  and  judgment. 

§  1076.  Copy  of  judgment  must  be  sent  to  the  inferior  tri- 
bunal. 

§  1077.    Judgment  rolls. 

§  1067.    The  writ  of  certiorari  may  be  denom- 
inated the  writ  of  review.     [Amendment  approved 


§§     1068-1071  WRIT    OF    REVIEW.  426 

March  24,  1874;  Amendments  1873-4,  p.  345.     In 
effect  July  1,  1874.] 

§  1068.  A  writ  of  review  may  be  granted  by 
any  court,  except  a  police  or  justice's  court,  when 
an  inferior  tribunal,  board,  or  officer,  exercising 
judicial  functions,  has  exceeded  the  jurisdiction  of 
such  tribunal,  board,  or  officer,  and  there  is  no 
appeal,  nor,  in  the  judgment  of  the  court,  any 
plain,  speedy,   and  adequate  remedy. 

Certiorari,  extent  of  review  on:  Sec.  1074. 

Supreme  Court  is  always  open  for  issuing  this 
writ:  Sec.  47. 

Court  commissioners,  power  to  hear  and  deter- 
mine ex  parte  motions  for  writ:  Sec.  259. 

Returnable.— Writ  may  be  made  returnable  at 
any  time:  Sec.  1108.     See  sec.  1070. 

§  1069.  The  application  must  be  made  on  affi- 
davit by  the  party  beneficially  interested,  and  the 
court  may  require  a  notice  of  the  application  to 
be  given  to  the  adverse  party,  or  may  grant  an  or- 
der to  show  cause  why  it  should  not  be  allowed, 
or  may  grant  the  writ  without  notice. 

Application,   Supreme  Ct.  rule  28. 

Issuance,  only  upon  order  of  the  court,  Supreme 
Ct.  rule  23. 

§  1070.  The  writ  may  be  directed  to  the  in- 
ferior tribunal,  board,  or  officer,  or  to  any  other 
person  having  the  custody  of  the  record  or  pro- 
ceedings to  be  certified.  When  directed  to  a  tri- 
bunal, the  cleric,  if  there  be  one,  must  return  the 
writ  with  the  transcript  required. 

§  1071.  The  writ  of  review  must  command  the 
party  to  whom  it  is  directed  to  certify  fully  to 
the  court  issuing  the  writ,  at  a  specified  time  and 
place,  a  transcript  of  the  record  and  proceedings 


427  WRIT    OF    REVIEW.  §§  1072-1076 

(.describing  or  referring  to  them  witti  convenient 
certainty),  that  the  same  may  be  reviewed  by  the 
court;  and  requiring  the  party,  in  the  meantime, 
to  desist  from  further  proceedings  in  the  matter 
to  be  reviewed. 
At  specified  time,  see  Supreme  Ct.  rule  23. 

§  1072.  If  a  stay  of  proceedings  be  not  intend- 
ed, the  words  requiring  the  stay  must  be  omitted 
from  the  writ;  these  words  may  be  inserted  or 
omitted,  in  the  sound  discretion  of  the  court;  but 
if  omitted,  the  power  of  the  inferior  court  or  of- 
ficer is  not  suspended  or  the  proceedings  stayed. 

§  1073.  The  writ  must  be  served  in  the  same 
manner  as  a  summons  in  civil  action,  except  when 
otherwise  expressly  directed  by  the   court. 

Service  of  writ,  on  public  tribunal,  etc.,  and 
proof  of  same.  Supreme  Ct.  rule  28. 

Service  of  summons:  Sec.  410  et  seq. 

§  1074.  The  review  upon  this  writ  cannot  be 
extended  further  than  to  determine  whether  the 
inferior  tribunal,  board,  or  officer  has  regularly 
pursued  the  authority  of  such  tribunal,  board,  or 
officer. 

§  1075.  If  the  return  of  the  writ  be  defective, 
the  court  may  order  a  further  return  to  be  made. 
When  a  full  return  has  been  made,  the  court  must 
hear  the  parties,  or  such  of  them  as  may  attend  for 
that  purpose,  and  may  thereupon  give  judgment, 
either  affirming,  or  annulling,  or  modifying  the 
proceedings  below. 

§  1076.  A  copy  of  the  judgment,  signed  by  the 
clerk,  must  be  transmitted  to  the  inferior  tribunal, 
board,  or  officer  having  the  custody  of  the  record 
or  proceeding  certified  up. 


§§  1077,  1085  WRIT    OF    MANDATE.  428 

§  1077.  A  copy  of  the  judgment,  signed  by  the 
clerk,  entered  upon  or  attached  to  the  writ  and 
return,  constitute  the  judgment  roll. 

Appeal:  Sec.  939. 

CHAPTER  II. 

WRIT  OF   MANDATE. 

§  1084.    Mandate   defined. 

§  1085.    When  and  by  what  court   issued. 

§  1086.    Writ,  when  and  upon  what  to  issue. 

§  1087.  Must  be  either  alternative  or  peremptory.  Sub- 
stance. 

§  1088.  If  the  application  be  without  notice,  the  alternative 
writ  may  issue;  otherwise,  the  peremptory.  Notice 
and   default. 

§  1089.    The  adverse  party  may  answer  under  oath. 

§  1090.  If  an  essential  question  of  fact  is  raised,  the  court 
may   order   a   jury    trial. 

§  1091.  The  applicant  may  demur  to  the  answer  or  counter- 
vail it  by  proof. 

§  1092.    Motion  for  new  trial,   where  made. 

§  1093.  The  clerk  must  transmit  the  verdict  to  the  court 
where  the  motion  is  pending,  after  which  the 
hearing  shall  be  had  on  motion. 

§  1094.  If  no  answer  be  made,  or  if  the  answer  raise  no 
material  issue  of  fact,  the  hearing  must  be  be- 
fore the  court. 

§  1095.  If  the  applicant  succeed,  he  may  have  damages, 
costs,   and  a  peremptory  mandate. 

§  1096.     Service  of  the  writ. 

§  1097.    Penalty  for  disobedience  to  the  writ. 

§  1084.  The  writ  of  mandamus  may  be  de- 
nominated a  writ  of  mandate.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  p. 
345.     In  effect  July  1,  1874.] 

§  1085.  It  may  be  issued  by  any  court,  except 
a  justice's  or  police  couit,  to  any  inferior  tribunal, 
corporation,  board,  or  person,  to  compel  the  per- 
formance of  an  act  which  the  law,  specially  en- 
joins, as  a  duty  resulting  from  an  office,  trust,  or 
station;  or  to  compel  the  admission  of  a  party  to 


429  WRIT  OF  MANDATE.  §§  1086-1088 

the  use  and  eujoyment  of  a  right  or  office  to  which 
he  is  entitled,  and  from  which  he  is  unUiwfully 
precluded  by  such  inferior  tribunal,  corporation, 
board,  or  person. 

Supreme  Court  always  open:  Sec.  47. 

Superior  Court  always  open:  Sec.  73.  Hearing, 
etc..  at  chambers:  Sec.  166. 

Court  commissioners,  power  to  hear  and  deter- 
mine ex  parte  motions  for  writ:  Sec.  259. 

lieturnable,  when  may  be  made:  Sec.  1108. 

§  1086.  The  ^\Tit  must  be  issued  in  all  cases 
where  there  is  not  a  plain,  speedy,  and  adequate 
remedy,  in  the  ordinary  course  of  law.  It  must 
be  issued  upon  affidavit,  on  the  application  of  the 
party  beneficially  interested. 

Issued,  Supreme  Court,  see  Supreme  Ct.  rule  28. 

§  1087.  The  writ  may  be  either  alternative  or 
peremptory.  The  alternative  writ  must  state  gen- 
erally the  allegation  against  the  party  to  whom  it 
is  directed,  and  command  such  party,  immediately 
after  the  receipt  of  the  writ,  or  at  some  other  spe- 
cified time,  to  do  the  act  required  to  be  performed, 
or  to  show  cause  before  the  court  at  a  specified 
time  and  place,  why  he  has  not  done  so.  The  per- 
emptory writ  must  be  in  a  similar  form,  except 
that  the  words  requiring  the  party  to  show  cause 
why  he  has  not  done  as  commanded  must  be 
omitted,  and  a  return  day  inserted. 

Peremptory  writ,  without  alternative:  Sec.  1088; 
Supreme  Ct.  rule  28. 

Alternate  writ.  Supreme  Court  rule  31. 

§  1088.  When  the  application  to  the  court  is 
made  without  notice  to  the  adverse  party,  and 
the  writ  be  allowed,  the  alternative  must  be  first 
issued;  but  if  the  application  be  upon  due  notice, 


§§  1089-1091  WRIT    OF   MANDATE  43(3 

and  the  writ  be  allowed,  the  peremptory  may  be 
issued  in  the  first  instance.  The  notice  of  the  ap- 
plication, when  0ven,  must  be  at  least  ten  days. 
The  writ  cannot  be  granted  by  default.  The  case 
must  be  heard  by  the  court,  whether  the  adverse 
party  appear  or  not. 

Proof  of  service,  on  public  body.  Supreme  Ct. 
rule  28. 

§  1089.  On  the  return  of  the  alternative,  or  the 
day  on  which  the  application  for  the  writ  is  no- 
ticed, the  party  on  whom  the  writ  or  notice  has 
been  served  may  show  cause  by  answer  unde^* 
oath,  made  in  the  same  manner  as  an  answer  to  a 
complaint  in  a  civil  action. 

Answer:  Sec.  437. 

§  1090.  If  an  answer  be  mn^e,  which  raises 
a  question  as  to  a  matter  of  fact  essential  to  the 
determination  of  the  motion,  and  affecting  the  sub- 
stantial rights  of  the  parties,  and  upon  the  sup- 
posed truth  of  the  allegation  of  which  the  appli- 
cation for  the  writ  is  based,  the  court  may,  in  its 
discretion,  order  the  question  to  be  tried  before 
a  jury,  and  postpone  the  argument  until  such  trial 
can  be  had.  and  the  verdict  certified  to  the  court. 
The  question  to  be  tried  must  be  distinctly  stated 
in  the  order  for  trial,  and  the  county  must  be 
designated  in  which  the  same  shall  be  had.  The 
order  may  also  direct  the  jury  to  assess  any  dam- 
ages which  the  applicant  may  have  sustained,  in 
case  they  find  for  him. 

§  1091.  On  the  trial  the  applicant  is  not  pre- 
cluded by  the  answer  from  any  valid  objection  to 
Its  sufficiency,  and  may  countervail  it  by  proof, 
either  in  direct  denial  or  by  way  of  avoidance. 


431  WRIT   OF   MANDATE.  §§  1092-1096 

§  1092.  The  motion  for  a  new  trial  must  be 
made  in  the  court  in  whicli  the  issue  of  fact  is 
tried. 

§  1093.  If  no  notice  of  a  motion  for  a  new  trial 
be  given,  or,  if  given,  the  motion  be  denied,  the 
clerk,  within  Hve  days  after  rendition  of  the  ver- 
dict or  denial  of  the  motion,  must  transmit  to 
the  court  in  which  the  application  for  the  writ  is 
pending,  a  certified  copy  of  the  verdict  attached 
to  the  order  of  trial;  after  which  either  party  may 
bring  on  the  argument  of  the  application,  upon 
reaiionable  notice  to  the  adverse  party. 

§  1094.  If  no  answer  be  made,  the  case  must 
be  heard  on  the  papers  of  the  applicant.  If  the 
answer  raises  only  questions  of  law,  or  puts  in 
issue  immaterial  statements,  not  affecting  the  sub- 
stantial rights  of  the  parties,  the  court  must  pro- 
ceed to  hear  or  fix  a  day  for  hearing  the  argu- 
ment of  the  case.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  345.  In  effect 
July  1,  1874.] 

§  1095.  If  judgment  be  given  for  the  applicant, 
he  may  recover  the  damages  which  he  has  sus- 
tained, as  found  by  the  jury,  or  as  may  be  deter- 
mined by  the  court  or  referees,  upon  a  reference 
to  be  ordered,  together  with  costs;  and  for  such 
damages  and  costs  an  execution  may  issue;  and 
a  peremptory  mandate  must  also  be  awarded  with- 
out delay. 

Costs:  Sees.  1021  et  seq. 

§  1096.  The  writ  must  be  served  in  the  same 
manner  as  a  summons  in  a  civil  action,  except 
when  otherwise  expressly  directed  by  order  of  the 
court.  Service  upon  a  majority  of  the  members 
of  any  board  or  body,  is  service  upon  the  board 


§§  1097,  1102  WRIT    OF    PROHIBITION.  432 

or  body,  whether  at  the  time  of  the  service  the 
board  or  body  was  in  session  or  not. 
Service  of  summons:  Sees.  410  et  seq. 

§  1097.  AVhen  a  peremptory  mandate  has  been 
issued  and  directed  to  any  inferior  tribunal,  cor- 
poration, board,  or  person,  if  it  appear  to  the  court 
that  any  member  of  such  tribunal,  corporation,  or 
board,  or  such  person  upon  whom  the  writ  has  been 
personally  served,  has,  Avithout  just  excuse,  re- 
fused or  neglected  to  obey  the  same,  the  court 
may,  upon  motion,  impose  a  fine  not  exceeding  one 
thousand  dollars.  In  case  of  persistence  in  a  re- 
fusal of  obedience,  the  court  may  order  the  party 
to  be  imprisoned  until  the  writ  is  obeyed,  and 
may  make  any  orders  necessary  and  proper  for  the 
complete  enforcement  of  the  writ.  [Amendment 
approved  March  24,  1874;  Amendments  1873-4,  p. 
345.  In  effect  July  1,  1874.] 
Contempt,   generally:   Sec.   1209  et  seq. 


CHAPTER  III. 

WRIT    OF    PROHIBITION. 

§  1102.    Prohibition  defined. 
§  1103.     Where  and  when  issued. 

§  1104.    Writ  may  be  alternative  or  peremptory.     Form   of. 
§  1105.     Certain   provisions   of   the   preceding   chapter  appli- 
cable. 

§  1102.  The  writ  of  prohibition  is  the  counter- 
part of  the  writ  of  mandate.  It  arrests  the  pro- 
ceedings of  any  tribunal,  corporation,  board,  or 
person,  whether  exercising  functions  .i"dicial  or 
ministerial,  when  such  proceedings  are  without  or 
in  excess  of  the  jurisdiction  of  such  tribunal,  cor- 
poration, board,  or  person.    fAmendment  approved 

i    .         .iiM..-  .....; 


433  WRIT    OF    PROHIBITION.  §§  1103-1105 

Miu'cli  V>,  1S81;  stats.  1881,  y.  20.     lu  effect  March 
3,  1881.] 
Mandate:  Sec.  1104  et  seq. 

§  1103.  It  may  be  issued  by  auy  court  except 
])olice  or  justices'  courts,  to  an  inferior  tribunal  or 
to  a  corporation,  board,  or  person,  in  all  cases 
where  there  is  not  a  plain,  speedy,  and  adequate 
remedy  in  the  ordinary  course  of  law.  It  is  issued 
upon  alhdavit,  ou  the  application  of  the  person 
beneficially  interested. 

:Mandate:  Sees.  1084  et  seq. 

Seal  necessary  to  a  writ:  Sec.  1.j2. 

§  1 104,  The  writ  must  be  either  alternative  or 
peremptory.  The  alternative  writ  must  state  gen- 
erallj'  the  allegation  against  the  party  to  whom  it 
is  directed,  and  command  such  party  to  desist  or  re- 
frain from  further  proceedings  in  the  action  or 
matter  specified  therein,  until  the  further  order  of 
the  court  from  which  it  is  issued,  and  to  shoAv 
cause  before  such  court,  at  a  specified  time  and 
place,  why  such  party  should  not  be  absolutely  re- 
strained from  any  further  proceedings  in  such  ac- 
tion or  matter.  The  peremptory  writ  must  be  in  a 
similar  form,  except  that  the  words  requiring  the 
pary  to  show  cause  why  he  should  not  be  abso- 
lutely restrained,  etc.,  must  be  omitted,  and  a  re- 
turn day  inserted. 

Compare  sec.  1087. 

§  1105.  The  provisions  of  the  preceding  chap- 
ter, except  of  the  four  first  sections  thereof,  ap- 
ply to  this  proceeding. 

Code  Civ.  Proc— 37. 


?§  1108,  1110  RULES    OF    PRACTICE 


CHAPTER  IV. 


WRITS    OF    REVIEW,    MANDATE,    AND    PROHIBITION 
MAY  ISSUE  AND  BE  HEARD  AT  CHAMBERS. 

§  1108.    Writs  of  review,  mandate,  and  prohibition  may  is- 
sue and  be  heard  at   chambers. 

§  1108.  Writs  of  review,  mandate,  and  prohibi- 
tion issued  bj'  the  Supreme  Court,  or  by  a  Superior 
Court,  may,  in  the  discretion  of  the  court  issu- 
ing the  writ,  be  made  returnable  and  a  hearing 
thereon  be  had  at  any  time.  [Amendment  ap- 
proved April  15,  18S0;  Amendments  1880,  p.  73.  In 
effect  April  15,  1880.] 

Powers  of  judges  at  chambers:  Sees.  165,  166. 


CHAPTER  V. 

RULES  OF  PRACTICE  AND  APPEALS. 

§  1109.    Certain  provisions  of  part  two  applicable. 
§  1110.    Same. 

§  1109.  Except  as  otherwise  provided  in  this  ti- 
tle, the  provisions  of  part  two  of  this  Code,  are  ap- 
l^lieable  to,  and  constitute  the  rules  of  practice  in 
the  proceedings  mentioned  in  this  title. 

See  ante,  sees.  307  et  seq. 

§  1110.  The  provisions  of  part  two,  of  this 
Code,  relative  to  new  trials  and  appeals,  except  in 
so  far  as  they  are  inconsistent  Math  the  provisions 
of  this  title,  apply  to  the  proceedings  meniioned  in 
this  title. 

See  sees.  650  et  seq.;  and  sees.  936  et  seq. 


435  CONTESTING  CERTAIN   ELECTIONS.  §  1111 


TITLE  II. 
OF   CONTESTING   CERTAIN  ELECTIONS. 

§  1111.    Who  may  contest,  and  grounds  of  contest. 

§  1112.  Irregularity  and  improper  conduct  of  judges,  when 
to  annul  elections. 

§  1113.    When  not  to. 

§  1114.    Illegal  votes,  when  not  to  vitiate  election. 

§  1115.    Proceedings  on  contest. 

§  1113.  Statement  of  cause  of  contest.  When  based  on  re- 
ception of  illegal  votes,  contestant  to  deliver  to  re- 
spondent a  list  of  votes  claimed  to  be  illegal. 

§  1117.  Statement  of  cause  of  contest;  want  of  form  not 
to   vitiate. 

§  1118.  County  judge  to  hold  special  term  for  trial  of  con- 
test. 

§  1119.     Clerk  to  issue  citation  to  respondent. 

§  1120.    Witnesses— attendance  of,  how  enforced. 

§  1121.     Power  of  court.     Adjournment  of  court. 

§  1122.     Rules  to  govern  court  in  trial  of  contest. 

§  1123.     Court  may  declare  who  was  elected. 

§  1124.     Fees  of  officers  and  witnesses. 

§  1125.     Costs. 

§  1126.    Appeal. 

§  1127.     When  election  void  and  office  vacant. 

§  1111.  Any  elector  of  a  county,  city  and  coun- 
ty, city,  or  of  any  political  subdivision  of  either, 
may  contest  the  right  of  any  person  declared  elect- 
ed to  an  office  to  be  exercised  therein,  for  any 
of  the  foUoAving  causes: 

1.  For  malconduct  on  the  part  of  the  board  of 
judges,  or  any  member  thereof; 

2.  When  the  person  wlioso  right  to  the  office  is 
contested  Avas  not,  at  the  time  of  the  election, 
eligible  to  such  office; 

3.  When  the  person  whose  right  is  contested  has 
given  to  any  elector  or  inspector,  judge,  or  clerk 
of  the  election,  any  bribe  or  reward,  or  has  offered 
any  such  bribe  or  reward  for  the  puii)ose  of  pro- 
curing his  election,  or  has  committed  any  other  of- 


§§  1112-1114  CONTESTING   ELECTIONS.  436 

fense  agaiust  the  elective  franchise,  deliiied  in 
title  foiii',  part  one,  of  the  Penal  Code; 

4.  On  account  of  illegal  votes.  [Amendment 
approved  March  11,  1876;  Amendments  1875-6,  p. 
100.] 

Malcouduct  of  judges:  Sees.  1112,  lllo. 

Legislature,  contesting  election  of  members  of: 
Polit.  Code,  sec.  273;  of  governor,  etc.,  Id.,  sec. 
288. 

Office,  usurpation  of,  etc.:  Sec.  802. 

Subd.  3.  Offense  against  elective  franchise: 
Pen.  Code,  sees.  41  et  seq. 

§  1112.  No  irregularity  or  improper  conduct  in 
the  proceedings  of  the  judges,  or  any  of  them,  is 
such  malcouduct  as  avoids  an  election,  unless  the 
irregularity  or  improper  conduct  is  such  as  to  pro- 
cure the  person  whose  right  to  the  office  is  con- 
tested TO  be  declared  elected,  when  he  had  not  re- 
ceived the  highest  number  of  legal  votes. 

§  1113.  When  any  election  held  for  an  office 
exercised  in  and  for  a  county  is  contested  on  ac- 
count of  any  malcouduct  on  the  part  of  the  board 
of  judges  of  any  township  election,  or  any  mem- 
ber thereof,  the  election  cannot  be  annulled  and  set 
aside  upon  any  proof  thereof,  unless  the  rejection 
of  the  vote  of  such  tOAvnship  or  townships  would 
chajige  the  result  as  to  such  office  in  the  remaining 
vote  of  the  county. 

§  1114.  Nothing  in  the  fourth  ground  of  contest 
specified  in  section  eleven  hundred  and  eleven,  is 
to  be  so  construed  as  to  authorize  an  election  to 
be  set  aside  on  account  of  illegal  votes,  unless  it 
appear  tliat  a  number  of  illegal  votes  has  been 
given  to  the  person  whose  riglit  to  the  office  is  con 


437  CONTESTING   ELECTIONS.  §§  1115,  1116 

tested,  Avliicli.  if  taken  from  him,  would  reduce 
the  number  of  his  legal  votes  below  the  number  of 
votes  given  to  some  other  person  for  the  same  of- 
fice, after  deducting  therefrom  the  illegal  votes 
which  may  be  shown  to  have  been  given  to  such 
other  person. 

§  1115.  When  an  elector  contests  the  right  of 
any  person  declared  elected  to  such  office,  he  must, 
within  forty  days  after  the  return  day  of  the  elec- 
tion, file  with  the  county  clerk  a  written  state- 
ment, setting  forth  specifically: 

1.  The  name  of  the  party  contesting  such  elec- 
tion, and  that  he  is  an  elector  of  the  district,  coun- 
ty, or  township,  as  the  case  may  be,  in  which  such 
election  was  held; 

2.  The  name  of  the  person  whose  right  to  the 
office  is  contested; 

3.  The  office; 

4.  The  particular  grounds  of  such  contest. 

Which  statement  must  be  verified  by  the  affi- 
davit of  the  contesting  party,  that  the  matters 
and  things   therein   contained   are   true. 

Statement  of  contestant:  See  sees.  1116,  1117. 
Abbreviations  and  numerals:  Sec.  186. 

§  1116.  When  the  reception  of  illegal  votes  is 
alleged  as  a  cause  of  contest,  it  is  sufficient  to 
state  generally  that  in  one  or  more  specified  voting 
precincts  illegal  votes  were  given  to  the  person 
whoso  election  is  contested,  which,  if  taken  from 
him,  will  reduce  the  number  of  his  legal  votes  be- 
low the  number  of  legal  votes  given  to  some  other 
person  for  the  same  office;  but  no  testimony  can  be 
received  of  any  illegal  votes,  unless  the  partj^  con- 
testing such  election  deliver  to  the  opposite  party, 
at  jeast  three  days  before  such  trial,  a  written  list 
of  the  number  of  illegal  votes,  and  by  whom  given. 


§§  1117-1120  CONTESTING   ELECTIONS.  438 

vrhich  lie  intends  to  prove  on  such  trial;  and  no  tes- 
timony can  be  received  of  auj'  illegal  votes  except 
such  as  are  specified  in  such  list  [Amendment 
approved  April  15,  1880;  Amendments  1880,  p.  74. 
In  effect  April  15,  1880.  j 

§  1117.  No  statement  of  the  grounds  of  contest 
will  be  rejected,  nor  the  proceedings  dismissed  by 
any  court  for  want  of  form,  if  the  grounds  of  con- 
test are  alleged  with  such  certainty  as  win  advise 
the  defendant  of  the  particular  proceeding  or 
cause  for  which  such  election  is  contested. 

§  1118.  Upon  the  statement  being  filed,  the 
county  clerk  must  inform  the  Superior  Court  of 
the  county  thereof,  which  shall  thereupon  order  a 
jjl)ecial  session  of  such  court  to  be  held  at  the 
court  room,  on  some  day  to  be  named  by  it,  not 
less  than  ten  nor  more  than  twenty  days  from  the 
date  of  such  order,  to  hear  and  determine  such 
contested  election.  [Amendment  approved  April 
15,  1880;  Amendments  1880,  p.  75.  In  effect  April 
15,  1880.] 

§  1119.  The  clerk  shall  thereupon  issue  a  cita- 
tion for  the  person,  whose  right  to  the  office  is  con- 
tested, to  appear  at  the  time  and  place  specified  in 
the  order,  which  citation  must  be  delivered  to  the 
sheriff,  and  served  either  upon  the  party  in  person, 
or,  if  he  cannot  be  found,  by  leaving  a  copy  there- 
of at  the  house  where  he  last  resided,  at  least  five 
days  before  the  time  so  specified.  [Amendment 
approved  April  15,  ISSO;  Amendments  1880,  p.  75. 
In  effect  April  15,  1880.] 

I 

§  1120.  The  clerk  must  issue  subpoenas  for 
witnesses  at  the  request  of  either  party,  which 
must  be  served  as  other  subpoenas;  and  the  Su- 
perior Court  shall  have  full  power  to  issue  attach- 


439  CONTESTING   ELECTIONS.  §§  1121-1124 

raents  to  compel  the  attendance  of  witnesses  who 
have  been  subpoenaed  to  attend.  [Amendment 
approved  April  15,  ISSO;  Amendments  1880,  p.  75. 
In  effect  April  15,  1880.] 

Subpoenas,  issuance,  service,  etc.:  Sees.  1985- 
1987;  also  see  sees.  1988-1990;  disobedience,  penal- 
ty, etc.,  sees.  1991-1992. 

Compelling  attendance  of  witnesses:  Sec.  1993 
et  seq. 

§  1121.  The  court  must  meet  at  the  time  and 
place  designated,  to  determine  such  contested  elec- 
tion, and  shall  have  all  the  powers  necessary  to  the 
determination  thereof.  It  may  adjourn  from  day 
to  day  until  such  trial  is  ended,  and  may  also  con- 
tinue the  trial,  before  its  commencement,  for  any 
time  not  exceeding  twenty  days,  for  good  cause 
shown  by  either  party  upon  atfidavit,  at  the  costs 
of  the  party  applying  for  such  continuance. 

§  1122.  The  court  must  be  governed,  in  the  trial 
and  determination  of  such  contested  election,  by 
the  rules  of  law  and  evidence  governing  the  deter- 
mination of  questions  of  law  and  fact,  so  far  as 
the  same  may  be  applicable;  and  may  u.smiss  the 
proceedings  if  the  statement  of  the  cause  or 
causes  of  the  contest  is  instifficient,  or  for  want 
of  prosecution.  After  hearing  the  proofs  and  alle- 
gations of  the  parties,  the  court  must  pronounce 
judgment  in  the  premises,  either  confirming  or  an- 
nulling and  setting  aside  such  election. 

§  1123.  If  in  any  such  case  it  appears  that  an- 
other person  than  the  one  returned  has  the  high- 
est number  of  legal  votes,  the  court  must  declare 
such  person  elected. 

§  1124.  [Repealed  April  15,  1880;  Amendments 
1880,  p.  7G.] 


§§  1125-1127  CONTESTING   ELECTIONS.  440 

§  1125.  If  the  proceedings  are  dismissed  for  iii- 
suflicieiicy,  or  want  of  prosecutiou,  or  the  election 
is  by  the  court  confirmed,  judgment  must  be  ren- 
dered against  the  party  contesting  such  election, 
for  costs,  in  favor  of  the  party  whose  election  was 
contested;  but  if  the  election  is  annulled  and  set 
aside,  judgment  for  costs  must  be  rendered  against 
the  party  whose  election  was  contested,  in  favor 
of  the  party  contesting  the  same.  Primarily,  each 
party  is  liable  for  the  costs  created  by  i^.mself ,  to 
the  officers  and  witnesses  entitled  thereto,  which 
may  be  collected  in  the  same  manner  as  similar 
costs  are  collected  in  other  cases.  [Amendment 
approved  April  15,  1880;  Amendments  1880,  p.  75. 
In  effect  April  15,  1880.] 

Costs,  in  special  proceedings:  Sees.  1022,  subd. 
4,  1024;  generally,  sec.  1021  et  seq. 

§  1126.  Either  party,  aggrieved  by  the  judg- 
ment of  the  court,  may  appeal  therefrom  to  the  Su- 
preme Court,  as  in  other  cases  of  appeal  thereto 
from  the  Superior  Court.  [Amendment  approved 
April  15,  1880;  Amendments  1880,  p.  75.  In  etfect 
April  15,  1880.] 

Appeals  to  Supreme  Court:  Sec.  963;  appeals, 
generally,  sec.  936  et  seq.;  from  county  court,  sec. 
966. 

§  1127.  Whenever  an  election  is  annulled  or  set 
aside  by  the  judgment  of  the  Superior  Court,  and 
no  appeal  has  been  taken  within  ten  days  there- 
after the  commission,  if  any  has  issued,  is 
void,  and  the  office  vacant.  [Amendment  ap- 
proved April  15,  1880;  Amendments  1880,  p.  75.  In 
effect  Apnl  15.  1880.] 


CONFESSION   OF  JUDGMENT.       §§  1132,  1133 


TITLE  III. 
OF  SUMMARY  PROCEEDINGS. 

Chapter  I.    Confession   of  judgment   without  ac- 
tion. 
II.    Submitting  a  controversy  without  ac- 
tion. 
III.    Discharge  of    persons  imprisoned    on 

civil  process. 
lA'.    Summary  proceedings    for    obtaining 
possession  of  real  property  in  cer- 
tain cases. 


CHAPTER  I. 

CONFESSION    OF   JUDGMENT   WITHOUT   ACTION. 

S  1132.    Judgment  may  be  confessed  for  debt  due  or  contin- 
gent  liability. 
§  1133.     Statement  in  writing  and  form  thereof. 
§  1134.     Filing  statement  and  entering  judgment. 
S  1J35.     How,    in    Justices'    Courts. 

§  1132.  A  judgment  by  confession  may  be  en- 
tered witliout  action,  either  for  money  due  or  to 
become  due,  or  to  secure  any  person  against  con- 
tingent liability  on  behalf  of  the  defendant,  or 
both,  in  the  manner  prescribed  bj^  this  chapter. 
Sucli  judgment  may  be  entered  in  any  court  hav- 
ing jurisdiction  for  like  amounts. 

Judgment  by  confession:  Sec.  1133;  in  justice's 
court,  sees.  889,  1135. 

§  1133.  A  statement  in  writing  must  be  made, 
signed  by  the  defendant,  and  verified  by  his  oath, 
to  the  following  effect: 

1.  It  must  authorize  the  entry  of  judgment  for 
a  specified  sum; 


§§  U34,  1135       CONFESSION  OF  JUDGMENT.  442 

2.  If  it  be  for  money  due,  or  to  become  due,  it 
must  state  concisely  tlie  facts  out  of  wliich  it 
arose,  and  show  that  the  sum  confessed  therefor 
is  justly  due,  or  to  become  due; 

3.  If  it  be  for  the  purpose  of  securing  the  plain- 
tiff against  a  contingent  liability,  it  must  state 
concisely  the  facts  constituting  the  liability,  and 
show  that  the  sum  confessed  therefor  does  not 
exceed  the  same. 

§  1134.  The  statement  must  be  filed  with  the 
clerk  of  the  court  in  which  the  judgment  is  to  be 
entered,  who  must  indorse  upon  it,  and  enter  in  the 
judgment  book,  a  judgment  of  such  court  for  the 
amount  confessed,  with  ten  dollars  costs.  The 
statement  and  affidavit,  with  the  judgment  in- 
dorsed thereupon,  becomes  the  judgment  roll. 

§  1135.  In  a  justice's  court,  where  the  court  ha^ 
authority  to  enter  the  judgment,  the  statement 
may  be  filed  with  the  justice,  who  must  there- 
upon enter  in  his  docket  a  judgment  of  his  court 
for  the  amount  confessed,  with  three  dollars  costs. 
If  a  transcript  of  such  judgment  be  filed  with  the 
county  clerk,  a  copy  of  the  statement  must  be 
filed  with  it. 

Justice's  court.— A  justice  has  power  to  take  and 
enter  judgment  on  confession  when  the  amount 
confessed,  exclusive  of  interest,  does  not  amount 
to  three  hundred  dollars:  Sec.  112,  subd.  6;  sees. 
114,  889. 


443  SUBMITTING    A    CONTROVERSY.    §§  1138-1140 

CHAFTEll  II. 

SUBMITTING  A  CONTROVERSY  WITHOUT  ACTION. 

§  1138.     Controversy,  how  submitted  without  action. 

§  1139.    Judgment  on,  as  in  other  cases,   but  without  costs 

prior  to  notice  of  trial. 
§  1140.    Judgment  may  be  enforced  or  appealed  from  as  in 

an  action. 

§  1138.  Parties  to  a  question  in  difference, 
wliich  might  be  the  subject  of  a  civil  action,  may, 
without  action,  agree  upon  a  case  containing  the 
facts  upon  which  the  controversy  depends,  and 
present  a  submission  of  the  same  to  any  court 
which  Avould  have  jurisdiction,  if  an  action  had 
been  brought;  but  it  must  appear,  by  affidavit, 
that  the  controversy  is  real,  and  the  proceedings 
in  good  faith,  to  determine  the  rights  of  the  par- 
ties. The  court  must  thereupon  hear  and  deter- 
mine the  case,  and  render  judgment  thereon,  as  if 
an  action  were  depending. 

Relief.  Sec.  580. 

§  1139.  Judgment  must  be  entered  in  the  judg- 
ment book  as  in  other  cases,  but  without  costs 
for  any  proceeding  prior  to  the  trial.  The  case, 
the  submission,  and  a  copy  of  the  judgment,  con- 
stitute the  judgment  roll. 

Entry  of  judgment:  Sec.  664. 

Judgment  roll:  See.  670. 

§  1140.  The  judgment  may  be  enforced  in  the 
same  manner  as  if  it  had  been  rendered  in  an  ac- 
tion, and  is  in  the  same  manner  subject  to  ap- 
peal. 

Enforcement  of  judgment:   Sec.   684. 

Appeals:   Sec.  9.36  et  seq. 


•il  1143-1 H5  DISCHARGE.  HI 


CHAPTEK  111. 

DISCHARGE     OF    PERSONS      IMPRISONED      ON    CIVIL. 
PROCESS. 

§  1143.  Persons  confined  may  be  discharged. 

§  1144.  Notice  of  application. 

§  1145.  Service  of  notice. 

§  1146.  Examination  before  judge. 

§  1147.  Interrogatories  may  be  in  writing. 

§  1148.  Oath   to   be   administered. 

§  1149.  Order   of    discharge. 

§  1150.  If  not  discharged,  prisoner  may  again  apply,  when. 

§  1151.  Discharge   final. 

§  1152.  Judgment  remains  in  force. 

§  1153.  Plaintiff  may  order  discharge  of  the  prisoner,  who 

shall  not  thereafter  be  liable  to  imprisonment  for 

the  same  cause  of  action. 

§  1154.  Plaintiff  to  advance  funds  for  support  of  prisoner. 

i5  1143.  Any  person  confined  in  jail  on  an  exe- 
cution i.ssued  on  a  .Inds'nient  rendered  in  a  civil 
action,  must  be  discliar.ned  tlierefroni  upon  tlie 
conditions  in  this  (•li:ii)ter  si)ecitied. 

§  1144.  Sucli  person  must  cause  a  notice  in 
Avritinii'  to  be  given  to  the  plaintiff,  his  ag:ent,  or 
attorney,  that  at  a  certain  time  and  place  he  will 
apply  to  a  jud.ae  of  the  Superior  Court  of  the 
county  in  which  such  person  may  be  confined  for 
the  purpose  of  obtaining"  a  dischar.ne  from  his  im- 
l)risonment.  |  Amendment  a  improved  April  10. 
1S80:  Amendments  18S0,  114.  In  effect  April  Ki 
ISSO.l 

Notices:    Sec.  1(>l<t  et  seq. 

>^  1145.  Sucli  notice  must  be  served  upon  tlie 
VlaiiitilT.  liis  ajiont  or  attorney,  one  day  at  least 
\»etor(»  tlie  hearinji:  of  the  application. 

Service  of  notice:    Se<',  1015. 


145  DISCHAIUJK.  ^^  IHG-lloO 

§  1146.  At  the  time  and  place  specified  in  the 
notice,  sucii  person  mnst  be  talven  before  sucli 
judire,  Avlio  must  examine  him  under  oath  con- 
cerning liis  estate  and  property  and  effects,  and 
tlie  disposal  thereof,  and  his  ability  to  pay  the 
judgment  for  which  he  is  committed;  and  sucli 
judge  may  also  hear  any  otlier  legal  and  pertinent 
evidence  that  may  be  produced  l)y  the  debtor  or 
the  creditor. 

§  1147.  The  plaintilf  in  tlie  action  may,  upon 
such  examination,  pi-opose  to  the  prisoner  any  in- 
terrogatories pertinent  to  tlie  inquirj-;  and  they 
must,  if  re(iuired  by  him,  be  proposed  and  an- 
swered in  writing,  and  the  answer  must  be  signed 
and  sworn  to  l)y  tlie  prison(>r. 

i^  1148.  If,  upon  the  examination,  the  judge 
is  satisfied  that  the  prisoner  is  entitled  to  his  dis- 
cliarge,  he  must  administer  to  him  the  following 

oath,  to-Avit:    "I, ,  do  solemnly  swear  that 

1  have  not  any  estate,  real  or  personal,  to  the 
amount  of  fifty  dollars,  except  such  as  is  by  law 
cxompred  from  being  talven  in  execution;  and  that 
I  liaA'e  not  anj-  other  estate  now  conveyed  or  con- 
cealed, or  in  any  way  disposed  of,  with  design  to 
secure  the  same  to  my  use.  or  to  hinder,  delay, 
or  defraud  my  creditors:  so  help  me  God." 

§  1149.  After  administering  the  oath,  the  judge; 
must  issue  an  order  that  the  prisoner  be  dis- 
charged from  custody,  and  the  officer,  upon  the 
sci-vice  of  such  order,  must  discharge  the  prisou- 
'  ;•  fortinvitli.  if  lie  bo  im]n-isonod  for  no  other 
'■;i,use. 

§   1150.    If  such  judge  does  not  discharge  tlie 
])risoner,  he  may  apply  for  his  discharge  at  the 
end  of  every  succeeding  ten  days,   in  the  same 
Code  Civ.   Proc— 38. 


§§  1151-1154  DISCHARGE.  446 

mannei'  as  above  provided,  and  the  same  proceed- 
ings must  thereupon  be  had. 

§  1151.  The  prisoner,  after  being  so  dis- 
charged, is  forever  exempted  from  arrest  or  im- 
prisonment for  the  same  debt,  unless  he  be  con- 
victed of  having  willfully  sworn  falsely  upon  his 
examination  before  the  judge,  or  in  taking  the 
oath  before  prescribed. 

§  1152.  The  judgment  against  any  prisoner 
who  is  discharged  remains  in  full  force  against 
any  estate  which  may  then  or  at  any  time  after- 
ward belong  to  him,  and  the  plaintiff  may  take 
out  a  new  execution  against  the  goods  and  estate 
of  the  prisoner,  in  like  manner  as  if  he  i.ad  never 
been  committed. 

§  1153.  The  plaintiff  in  the  action  may  at  any 
time  order  the  prisoner  to  be  discharged,  and  he 
is  not  thereafter  liable  to  imprisonment  for  the 
same  cause  of  action, 

§  1154.  Whenever  a  person  is  committed  to 
jail  on  an  execution  issued  on  a  judgment  recov- 
ered in  a  civil  action,  the  creditor,  his  agent  or  at- 
torney, must  advance  to  the  jailer,  on  such  com- 
mitment, sutiicient  money  for  the  support  of  the 
prisoner  for  one  week,  and  must  make  the  like  ad- 
vance for  every  successive  week  of  his  imprison- 
ment, and  in  case  of  failure  to  do  so,  the  jailer 
must  forthwith  discharge  such  prisoner  from  cus- 
tody; and  such  discharge  has  the  same  effect  as 
if  jnade  by  order  of  the  creditor. 


I 


SUMMARY    PROCEEDINGS.  §  1159 


CHAPTER  IV. 

SUMMARY   PROCEEDINGS     FOR     OBTAINING   POSSES- 
SION OP   REAL  PROPERTY  IN   CERTAIN 
CASES. 

§  1159.  Forcible   entry   defined. 

§  1160.  Forcible   detainer   defined. 

§  1161.  Unlawful  detainer  defined. 

§  1162.  Service  of  notice. 

§  1163.  County  Courts  have  jurisdiction. 

§  1164.  Parties  defendant. 

§  1165.  Parties  generally. 

§  1166.  Complaint.  Judge  to  fix  day  for  appearance  of  de- 
fendant and  summons. 

§  1167.  Summons,   form  and  service  of. 

§  1168.  Arrest. 

§  1169.  Judgment  by  default. 

§  1170.  Defendant  may  appear,  etc. 

§  1171.  Trial  by  jury. 

§  1172.  Showing  required  of  plaintiff  in  forcible  entry  or 
detainer.     Of  defendant. 

§  1173.  Complaint  must  be  amended  in  certain  cases. 

§  1174.  Verdict  and  judgment.    ■ 

}_  1175.  Verification   of  complaint  and  answer. 

§  1176.  Effect  of  an  appeal  upon  the  judgment. 

§  1177.  Rules  of  practice. 

§  1178.  Appeals,   how  taken,  etc. 

§  1179.  Relief  against  forfeiture  of  lease. 

§  1159.  Every  person  is  s'liilty  of  a  forcible  en- 
try who  either— 

1.  By  breakins:  open  doors,  windows,  or  other 
parts  of  a  house,  or  by  any  kind  of  violence  or 
circumstance  of  terror,  enters  npon  or  into  any 
real  property;  or, 

2.  Who,  after  enterins"  peaceably  upon  real 
property,  turns  out  by  force,  threats,  or  menacing 
conduct,  the  party  in  possession. 

Proof  required:    Sec.  1172. 

Parties  defendant:   Sees,  1164,  1165, 

Force  as  element:    See  infra. 


§  1160  SUMMARY    PROCEEDINGS.  448 

Previous  statutoiy  provisions.— "See  Stats.  1860, 
p.  768,  sec.  1.  Tliis  cliapter,  relating  to  forcible 
entries,  forcible  detainers,  and  unlawful  detainers, 
is  drawn  partly  from  Stats.  1865-6,  768,  and  also 
Stats.  1863,  652.  An  act  concerning  forcible  en- 
tries and  unlawful  detainers  was  passed  by  Stats. 
1850,  125,  amended  by  Stats.  1852,  158,  also  by 
Stats.  1858,  90,  also  by  Stats.  1861,  582,  and  again 
by  Stals.  1862,  420;  but  these  acts  were  repealed 
by  Stats.  1863,  652.  The  decisions  cited  in  this 
chapter,  which  were  rendered  prior  to  the  thirty- 
second  volume  of  reports,  were  rendered  under 
Stats.  1850,  425,  and  acts  amendatory  thereof. 
Those  rendered  since  that  volume  were  given  un- 
der the  acts  of  1863,  p.  652,  and  1866,  p.  768.  All 
these  decisions  bear  more  or  less  upon  the  pro- 
visions of  this  chapter,  Avhich,  in  most  respects,  is 
very  similar  to  the  previous  statutes":  Gommis- 
sioners'  note. 

§  1160.  Every  person  is  guilty  of  a  forcible  de- 
tainer who  either — 

1.  Hy  force,  or  by  menaces  and  threats  of  vio- 
lence, unlawfully  holds  and  keeps  the  possession 
of  any  real  property,  whether  the  same  was  ac- 
quired peaceably  or  otlierwise;  or, 

2.  Who,  in  the  night  time,  or  during  the  ab- 
sence of  the  occupant  of  any  lands,  unlawfully  en- 
ters upon  real  property,  and  who,  nfter  demand 
made  for  the  surrender  thereof,  for  the  period  of 
five  days  refuses  to  surrender  the  snme  To  sncli 
former  occupant. 

The  occupant  of  real  property,  witliin  tlie  mean- 
ing of  tliis  subdivision,  is  one  who  within  five 
days  preceding  such  unlawful  entry,  was  in  the 
peaceable  and  undisturbed  possession  of  such 
laiuls. 


449  SUMMARY   PROCEEDINGS.  §  1161 

§  1161.  A  tenant  of  real  property,  for  a  term 
less  thau  life,  is  guilty  of  unlawful  detainer: 

1.  AVlien  he  continues  in  possession,  in  person 
or  by  subtenant,  of  the  property,  or  any  part 
thereof,  after  the  expiration  of  the  term  for  which 
it  is^  let  to  him,  witliout  the  permission  of  his 
landlord,  or  the  successor  in  estate  of  his  land- 
lord, if  any  there  be;  but  in  case  of  a  tenancy  at 
will,  it  must  first  be  terminated  by  notice,  as  pre- 
scribed, in  the  Civil  Code. 

2.  A"S'here  he  continues  in  possession,  in  person 
or  by  subtenant,  without  permission  of  his  laud- 
lord,  or  the  successor  in  estate  of  his  landlord,  if 
any  there  be,  after  default  in  the  payment  of  rent, 
pursuaut  to  the  lease  or  agreement  under  which 
the  property  is  held,  and  three  days'  notice,  in 
writing,  requiring  its  payment,  stating  the  amount 
which  IS  due,  or  possession  of  the  property,  shall 
have  been  served  upon  him,  and  if  there  be  a 
subtenant  in  actual  occupation  of  the  premises, 
also  upon  such  subtenant.  Such  notice  may  be 
served  at  any  time  within  one  year  after  the  rent 
becomes  due.  In  all  cases  of  tenancy  upon  agri- 
cultural lands,  where  the  tenant  has  held  over 
and  retained  possession  for  more  than  sixty  days 
after  the  expiration  of  his  term  without  any  de- 
mand of  possession  or  notice  to  quit  by  the  land- 
lord, or  the  successor  in  estate  of  his  landlord,  if 
any  there  be,  he  shall  be  deemed  to  be  holding  by 
permission  of  the  landlord,  or  the  successor  in  es- 
tate of  his  landlord,  if  any  there  be,  and  shall  be 
entitled  to  hold  under  the  terms  of  the  lease  for 
another  full  year,  and  shall  not  be  guilty  of  an 
unlawful  detainer  during  said  year,  and  such 
holding  over  for  tlie  period  aforesaid  shall  be 
taken  and  construed  as  a  consent  on  the  part  of  a 
tenant  to  hold  for  another  year. 

3.  When  he  continues  in  possession,  in  person 


§  1161  SUMMARY    PROCEEDINGS.  -IGO 

or  by  subtenant,  after  a  neglect  or  failure  to  per- 
form other  conditions  or  covenants  of  the  lease  or 
agreement  under  which  the  property  is  held,  in- 
cluding* any  covenant  not  to  assign  or  sublet,  than 
the  one  for  the  payment  of  rent,  and  three  days' 
notice,  in  writing,  requiring  the  performance  of 
such  conditions  or  covenants,  or  the  possession  of 
the  property,  shall  have  been  served  upon  him, 
and  if  there  be  a  subtenant  in  actual  occupation 
of  the  premises,  also  upon  such  subtenant.  With- 
in three  days  after  the  service  of  the  notice,  the 
tenant,  or  any  subtenant  in  actual  occupation  of 
the  premises,  or  any  mortgagee  of  the  term,  or 
other  person  interested  in  its  continuance,  may 
perform  the  conditions  or  covenants  of  the  lease 
or  pay  the  stipulated  rent,  as  the  case  may  be, 
and  thereby  save  the  lease  from  forfeiture.  A 
tenant  may  tal^e  proceedings,  similar  to  those  pre- 
scribed in  this  chapter,  to  obtain  possession  of  the 
premises  let  to  an  under-tenant,  in  case  of  his 
unlawful  detention  of  the  premises  underlet  to 
him. 

4.  Any  tenant  or  subtenant  assigning  or  sublet- 
ting or  committing  waste  upon  the  demised  prem- 
ises, contrary  to  the  covenants  of  his  lease,  there- 
by terminates  the  lease,  and  the  landlord,  or  his 
successor  in  estate,  shall,  upon  service  of  three 
days'  notice  to  quit,  upon  the  person  or  persons 
in  possession,  be  entitled  to  restitution  of  posses- 
sion of  such  demised  premises  under  the  provi- 
sions of  this  act.  [Amendment  approved  April  1, 
1878;  Amendments  1877-S,  104.  Took  effect  from 
passage.] 

On  the  same  day  that  the  foregoing  amendment 
of  section  1101  was  approved,  another  amend- 
ment of  the  same  section  was  approved,  as  fol- 
lows: 


-151  SUMMARY    PROCEEDINGS  §  1161 

§  1161.  A  tenant  of  real  property,  for  a  term 
less  than  life,  is  guilty  of  an  unlawful  detainer: 

1.  AVben  lie  continues  in  possession,  in  person 
or  by  subtenant,  of  the  property,  or  any  part 
thereof,  after  the  expiration  of  the  term  for  which 
it  is  let  to  him,  Avithoiit  permission  of  his  land- 
lord; but  in  case  of  tenancy  at  will,  it  must  first 
be  terminated  by  notice,  as  prescribed  in  the  Civil 
Code. 

2.  Where  he  continues  in  possession,  in  person 
or  by  subtenants,  without  permission  of  his  land- 
lord,after  default  in  the  payment  of  rent,  pursu- 
ant to  the  lease  or  agreement  under  which  th'^ 
property  is  held,  and  three  days'  notice,  in  wru- 
ing,  reciuiring  its  payment,  stating  the  amount 
which  is  due,  or  possession  of  the  property,  shall 
have  been  served  upon  him;  and  if  there  be  a  sub- 
tenant in  actual  occupation  of  the  premises,  also 
upon  subtenant.  Such  notice  may  be  served  at 
any  time  within  one  year  after  the  rent  becomes 
due.  In  all  cases  of  tenancy  upon  agricultural 
lands,  where  the  tenant  has  held  over  and  retain- 
ed possession  for  more  than  sixty  days  after  the 
expiration  of  his  term,  without  any  demand  of 
possession  or  notice  to  quit  by  the  landlord,  he 
shall  be  deemed  to  be  holding  by  permission  of 
the  landlord,  and  shall  be  entitled  to  hold,  under 
the  terms  of  the  lease,  for  another  full  j'ear,  and 
shall  not  be  deemed  guilty  of  an  unlawful  detain- 
er during  said  year,  and  such  holding  over  for  the 
period  aforesaid  shall  be  talcen  and  construed  as 
a  consent,  on  the  part  of  a  tenant,  to  hold  for 
another  year. 

3.  When  he  continues  in  possession,  in  person 
or  by  subtenants,  after  a  neglect  or  a  failure  to 
perform  other  conditions  or  covenants  of  the  lease 
or  agreement  under  which  the  property  is  held, 
than  the  one  for  the  payment  of  rent,  and  three 


ij  1132  SUMMARY  PROCEEDINGS.  452 

days'  iiotice,  in  writiug,  requiriufe-  tiie  perform- 
ance ot  SUCH  couditious  or  coveuauts,  or  tlie  pos- 
session ot  the  propert}',  shall  have  been  served 
upon  him;  and  if  there  be  a  subtenant  in  actual 
occupation  of  the  premises,  also  upon  such  subten- 
ant. "SA'ithin  three  days  after  the  service  of  the 
notice,  the  tenant  or  any  subtenant  in  actual 
occupation  of  the  premises,  or  any  mortgagee  of 
the  term,  or  other  person  interested  in  the  con- 
tinuance, may  perform  the  conditions  or  coven- 
ants of  the  lease,  or  paj^  the  stipulated  rent,  as  the 
case  may  be,  and  thereby  save  the  lease  from  for- 
feiture; provided,  if  the  covenants  and  conditions 
of  lease,  violated  by  the  lessee,  cannot  afterward 
be  performed,  then  no  notice,  as  last  prescribed 
herein,  need  be  given  to  said  lessee  or  his  subten- 
ant demanding  the  performance  of  the  violated 
covenant  or  conditions  of  the  lease.  A  tenant  may 
take  proceedings  similar  to  those  prescribed  in 
this  chapter  to  obtain  possession  of  the  premises 
let  to  an  under-tenant,  in  case  of  his  unlawful 
detention  of  the  premises  underlet  to  him. 
[Amendment  approved  April  1,  1878;  Amend- 
ments 1877-8,  lOG.     Took  effect  from  passage.] 

§  1162.  The  notices  required  by  the  preceding 
section  may  be  served  either: 

1.  By  delivering  a  copy  to  the  tenant  person- 
ally; or, 

2.  If  he  be  absent  from  his  place  of  residence, 
and  from  his  usual  place  of  business,  by  leaving 
a  copy  with  some  person  of  suitable  ago  and  dis- 
cretion at  either  place,  and  sending  a  copy  through 
the  mail  addressed  to  the  tenant  at  his  place  of 
residence;  or, 

3.  If  such  place  of  residence  and  business  can- 
not be  ascertained,  or  a  person  of  suitable  age  or 
discretion  there  cannot  be  found,  then  by  affixing 


453  SUMMARY  PROCEEDINGS.  §§  1163,  1164 

a  copy  ill  a  conspicuous  place  on  tlie  property, 
and  also  delivering;  a  copy  to  a  person  there  resid- 
ing, if  such  person  can  be  found;  and  also  send- 
ing a  copy  through  the  mail  addressed  to  the  ten- 
ant at  the  place  where  the  property  is  situated. 
Service  upon  a  subtenant  may  be  made  in  the 
same  manner.  [Amendment  approved  March  24, 
1874;  Amendments  1873-4,  347.  In  effect  July  1, 
1874.] 

§  1163.  The  Superior  Court  of  the  county  in 
which  The  property,  or  some  part  of  it,  is  situated, 
shall  have  jurisdiction  of  proceedings  under  this 
chapter;  provided,  that  justices'  courts,  within 
their  respective  townships,  or  cities,  or  cities  and 
counties  shall  have  concurrent  jurisdiction  with 
the  Superior  Courts  in  cases  of  forcible  entry  and 
detainer,  when  the  rental  value  does  not  exceed 
tweuty-tive  dollars  per  month,  and  when  the 
whole  amount  of  damages  claimed  does  not  ex- 
ceed two  hundred  dollars.  [Amendment  approved 
March  9,  1880;  Amendments  1880,  8.  In  effect 
March  9,  1880.] 

Concurrent  jurisdiction  of  justices'  court:  Sec. 
113,  subd.  1. 

§  1164.  No  person  other  than  the  tenant  of  the 
premises  and  subtenant,  if  there  be  one,  in  the  ac- 
tual occupation  of  the  premises  when  the  com- 
plaint is  filed,  need  be  made  parties  defendant  in 
the  proceeding,  nor  shall  any  proceeding  abate, 
nor  the  plaintiff"  be  nonsuited  for  the  nonjoinder 
of  any  person  who  might  have  been  made  party 
defendant;  but  when  it  appears  that  any  of  the 
parties  served  with  [)rocess,  or  appearing  in  the 
proceeding,  are  guilty  of  the  offense  charged, 
judgment  must  be  rendered  against  him.  In  case 
a  defendant  has  become  a  subtenant  of  the  prem- 
ises in  controversy,  after  the  service  of  the  notice 


§§  1165,  1166  SUMMARY  PROCEEDINGS.  454 

provided  for  by  part  two  of  section  eleven  hun- 
dred and  sixty-one  of  this  Code,  upon  the  tenant 
of  the  premises,  the  fact  that  such  notice  was  not 
served  on  each  subtenant  shall  constitute  no  de- 
fense to  the  action.  In  case  a  married  woman  be 
a  tenant,  or  a  subtenant,  her  coverture  shall  con- 
stitute no  defense;  but  in  case  her  husband  be  not 
joined,  or  unless  she  be  doing  business  as  a  sole 
trader,  an  execution  issued  upon  a  personal  judg- 
ment against  her  can  only  be  enforced  against 
property  on  the  premises  at  the  commencement  of 
the  action.  All  persons  who  enter  the  premises 
under  the  tenant,  after  the  commencement  of  the 
suit,  shall  be  bound  by  the  judgment,  the  same  as 
if  he  or  they  had  been  made  party  to  the  action. 
[Amendment  approved  March  14,  1885;  Amend- 
ments 1885,  129.] 
Parties  plaintiff,  and  generally:    Sec.  1165. 

§  1165.  Except  as  provided  in  the  preceding 
section  the  provisions  of  part  two  of  this  Code,  re- 
lating to  pai'ties  to  civil  actions,  are  applicable  to 
this  proceeding. 

See  sees.  307  et  seq.,  ante. 

I*arties  defendant:    Sec.  1164. 

§  1166.  The  plaintiff,  in  his  complaint,  which 
shall  be  in  writing,  must  set  forth  the  facts  on 
which  he  seelvs  to  recover,  and  describe  the  prem- 
ises with  reasonable  certainty,  and  may  set  forth 
therein  any  circumstances  of  fraud,  force,  or  vio- 
lence which  may  have  accompanied  the  alleged 
forcible  entry  or  forcible  or  unlawful  detainer  and 
claim  damages  therefor.  In  case  the  un- 
lawful detainer  charged  be  after  default  in 
the  payment  of  rent,  the  complaint  must 
state  the  amount  of  such  rent.  Upon  fil- 
ing   the    complaint,     a     summons    must    be     is- 


455  SUMMARY   PROCEEDINGS.  §  1167 

sued  thereon  as  in  other  cases,  returnable  at  a 
daj'  designated  therein,  which  shall  not  be  less 
than  three  daj's,  nor  more  than  twelve  days  from 
irs  date,  except  in  cases  when  the  publication  of 
the  summons  is  necessary,  in  which  case  the  court 
or  a  judge  or  justice  thereof,  may  order  that  the 
summons  be  made  returnable  at  such  time,  as 
may  be  deemed  proper,  and  the  summons  shall 
specify  the  return  day  so  fixed.  [Amendment 
approved  March  14,  1885;  Stats.  1885,  129.  In  ef- 
fect March  9,  1880.] 

Damages:    Sec.  1174. 

Amendment:    Sees.  472,  473,  1172. 

Abbreviations  and  numerals:    Sec.  186. 

Verification:    Sees.  1175,  446. 

Parties:    Sees.  1164,  1165. 

§  1167.  The  summons  must  state  the  parties 
to  the  proceeding,  the  court  in  which  the  same  is 
brought,  the  nature  of  the  action,  in  concise  terms, 
and  the  relief  sought,  and  also  the  return  day,  and 
must  notify  the  defendant  to  appear  and  answer 
within  the  time  designated,  or  that  the  relief 
sought  will  be  taken  against  him.  The  summons 
must  be  directed  to  the  defendant,  and  be  served 
at  least  two  days  before  the  return  day  desig- 
nated therein.,  and  must  be  served  and  returned 
in  the  same  manner  as  summons  in  civil  actions  is 
served  and  returned.  Upon  the  return  of  any 
sum.mons  issued  under  this  chapter,  where  the 
same  has  not  for  any  reason,  been  served,  or  not 
served  in  time,  the  plaintiff  may  have  a  new  sum- 
mons issued,  the  same  as  if  no  previous  summons 
had  been  issued.  [Amendment  approved  March 
9.  1880;  Amendments  1880,  8.  In  effect  March  9, 
1880.] 

Service  of  summons,  in  civil  action:  Sec.  406  et 
seq. 


§§  1168-1172  SUMMARY   PROCEEDINGS.  456 

§  1168.  If  the  complaiut  presented  establishes, 
to  the  satisfaction  of  the  judge  or  justice,  fraud, 
force,  or  violence,  in  tlie  entry  or  detainer,  and 
that  the  possession  held  is  unlawful,  he  may  make 
an  order  for  the  arrest  of  the  defendant.  [Amend- 
ment approved  March  9,  1880;  Amendments  1880, 
0.    In  effect  March  9,  1880.] 

Arrest,  .uenerally:    Sec.  478  et  se(i. 

§  1169.  If,  at  the  time  appointed,  the  defend- 
ant do  not  appear  and  defend,  the  court  must  en- 
ter his  default,  and  render  judgment  in  favor  of 
the  plaintiff,  as  prayed  for  in  the  complaint. 

.Judgment  by  default,  generally:    Sec.  585. 

§  1170.  On  or  before  the  day  fixed  for  his  ap- 
pearance, the  defendant  may  appear  and  answer 
or  demur. 

See  sec.  1177. 

Appearance,  generally:    Sec.  1014. 

xVnswer— Scope  of:  Sec.  1172;  verification:  Sec. 
1175;  generally:    Sec.  4.37. 

§  1171.  "NMienever  an  issue  of  fact  is  present- 
ed by  the  pleadings,  it  must  be  tried  by  a  jury, 
unless  such  jury  be  waived  as  in  other  cases.  The 
jury  shall  be  formed  in  the  same  manner  as  other 
trial  juries  in  the  court  in  Avhich  tlie  action  is 
])ending.  [Amendment  approved  March  9,  1880: 
Amendments,  1880,  9.    In  effect  :March  9,  1880.] 

Trial  by  jury:  Sees.  G00-()28;  issue  of  fact:  Sec. 
590  et  seq.;  waiver:  Sec.  r».31.  Formation  of  the 
jury:    Sees.  GOO-604. 

Justices-  coiu'ts— trials  in:    Sees.  878-887. 

§  1172.  On  the  trial  of  any  proceeding  for  any 
forcible  entry  or  forcible  detainer,  the  plaintiff 
sliall  only  be  required  to  show,  in  addition  to  the 


457  SUMMARY  PROCEEDINGS.  §§  1173,  1174 

forcible  outry  or  forcible  detainer  complained  of, 
that  be  was  peaceably  in  the  actual  possession  at 
the  time  of  the  forcible  entry,  or  was  entitled  to 
the  possession  at  the  time  of  the  forcible  detainer. 
The  defendant  may  show  in  his  defense,  that  he 
or  his  ancestors,  or  those  whose  interest  in  such 
premises  he  claims,  have  been  in  the  quiet  posses- 
sion thereof  for  the  space  of  one  Avhole  year  to- 
gether next  before  the  commencement  of  the  pro- 
ceedings, and  that  his  interest  therein  is  not  then 
ended  or  determined:  and  such  showing  is  a  bar 
to  the  proceedings. 

Amendments:    Sees.  472,  473. 

Practice,  etc.:   Sees.  807-1059;  see  sec.  1177. 

§  1173.  AVhen,  upon  the  trial  of  any  proceed-, 
ing  under  this  chapter,  it  appears  from  the  evi- 
dence that  the  defendant  has  been  guilty  of  either 
a  forcible  entry,  or  a  forcible  or  unlawful  detainer, 
and  other  than  the  offense  charged  in  the  com- 
plaint, the  judge  must  order  that  such  complaint 
be  fortliwith  amended  to  conform  to  such  proofs; 
sucl)  amendment  must  be  made  without  any  im- 
position of  terms.  No  continuance  shall  be  per- 
mitted upon  account  of  sucli  amendment,  unless 
tlie  defendant,  by  affidavit  tiled,  shows  to  the  sat- 
isfaction of  the  court  good  cause  therefor. 
I  Amendment  approved  Marcli  12,  1885;  Stats. 
1885.  102.] 

Continuance,  generally:    Sec.  595. 

§  1174.  If,  upon  the  trial,  the  verdict  of  the 
jury,  or,  if  the  case  be  tried  without  a  jury,  the 
finding  of  the  court  be  in  favor  of  the  plaintiff 
and  against  the  defendant,  judgment  shall  be  en- 
tered for  the  restitution  of  the  premises;  and  if 
Hie  proceeding  be  for  an  unlawful  detainer  after 
neglect,   or  failure  to  perform  the  conditions  or 

Code   Civ.   Proc— 39. 


§  1174  SUMMARY    PROCEEDINGS.  458 

covenants  of  the  lease  oi*  agreement  undei'  which 
the  property  is  held,  or  after  default  in  the  pay- 
ment of  rent,  the  judgment  shall  also  declare  the 
forfeiture  of  such  lease  or  agreement.  The  jury, 
or  the  court,  if  the  proceeding  be  tried  without 
a  jury,  shall  also  assess  the  damages  occasioned 
to  ihe  plaintiff  by  any  forcible  entry,  or  by  any 
forcible  or  unlawful  detainer,  alleged  in  the  com- 
plaint and  proved  on  the  trial,  and  find  the 
amount  of  any  rent  due,  if  the  alleged  unlawful 
detainer  be  after  default  in  the  payment  of  rent; 
and  the  judgment  shall  be  rendered  against  the 
defendant  guilty  of  the  forcible  entry,  or  forcible 
or  unlawful  detainer,  for  three  times  the  amount 
of  the  damages  thus  assessed,  and  of  the  rent 
found  due.  When  the  proceeding  is  for  an  unlaw- 
ful detainer  after  default  in  the  payment  of  the 
rent,  and  the  lease  or  agreement  under  which 
the  rent  is  payable  has  not  by  its  terms  expired 
execution  upon  the  judgment  shall  not  be  issued 
until  the  expiration  of  five  days  after  the  entry 
of  the  judgment,  within  which  time  the  tenant,  or 
and  subtenant,  or  any  mortgagee  of  the  term,  or 
other  party  interested  in  its  continuance,  may 
pay  into  court,  for  the  landlord,  the  amount 
found  due  as  rent,  with  interest  thereon,  and  the 
amount  of  the  damages  found  by  the  jury  or  the 
court  for  the  unlawful  detainer,  and  the  costs  of 
the  proceeding,  and  thereupon  the  judgment  shall 
be  satisfied  and  the  tenant  be  restored  to  his  es- 
tate; but  if  payment,  as  here  provided,  be  not 
made  within  the  five  days,  the  judgment  may  be 
enforced  for  its  full  amount,  and  for  the  posses- 
sion of  the  premises.  In  all  other  cases  the  judg- 
ment may  be  enforced  immediately.  [Amend- 
ment approved  ISIarch  24,  1874;  Amendments 
1873-4,  349.  In  effect  July  1,  1874.] 
See  sees.  11.59-1101,  generally. 


459  SUMMARY   PROCEEDINGS.  §§  1175-1179> 

Forfeiture,  relief  from:    Sec.  1171). 
Damages,  trebling:   Sec.  735. 

§  1175.    The  complaint   and  answer    must  be 
verified. 
Verification  of  pleadings:    Sec.  446. 

§  1176.  An  appeal  taken  by  the  defendant 
shall  not  stay  proceedings  upon  the  judgment,  un- 
less the  judge  or  justice  before  whom  the  same 
was  rendered  so  directs.  [Amendment  approved 
March  9,  1880;  Amendments  ISSO,  9.  In  effect 
March  9,  1880.  J 

Appeal  as  stay— generally:    Sees.  94G,  949. 

§  1177.  Except  as  otherwise  provided  in  this 
chapter,  the  provisions  of  part  two,  of  this  Code, 
are  applicable  to,  and  constitute  the  rules  of  prac- 
tice in  the  proceedings  mentioned  in  this  chapter. 

For  part  2,  see  ante,  sec,  307. 

§  1178.  Provisions  of  part  two  of  this 
Code,  relative  to  new  trials  and  appeals,  except 
in  so  far  as  they  are  inconsistent  with  the  provi- 
sions of  this  chapter,  apply  to  the  proceeding& 
mentioned  in  this  chapter. 

See  ante,  sees.  656,  930. 

§  117S.  The  court  may  relieve  a  tenant  against 
a  forfeiture  of  a  lease,  and  restore  him  to  his 
former  estate,  in  case  of  hardship,  where  appli- 
cation for  such  relief  is  made  within  thirty  days 
after  the  forfeiture  is  declared  by  the  judgment 
of  the  court,  as  provided  in  section  one  thousand 
one  hundred  and  seventy-four.  The  application 
may  be  made  by  a  tenant  or  subtenant,  or  a  mort- 
gagee of  the  term,  or  any  person  interested  in 
the  continuance  of  the  term.     It  must  be  made 


§  1180  LIENS    IN    GENERAL.  460 

upon  petition,  setting  forth  the  facts  upon  which 
the  relief  is  sought,  and  be  verified  by  The  appli- 
cant. Notice  of  the  application,  with  a  copy  of  the 
petition,  must  be  served  on  the  plaintiff  in  the 
judgment,  who  may  appear  and  contest  the  appli- 
cation. In  no  case  shall  the  application  be  grant- 
ed except  on  condition  that  full  payment  of  rent 
due,  or  full  performance  of  conditions  or  cove- 
nants stipulated,  so  far  as  the  same  is  practica- 
ble, be  made.  [Amendment  approved  March  9. 
1880:  Amendments  1880.  9,  In  eflPect  March  9, 
1880,] 


TITLE  IV. 

OF  THE  ENFORCEMENT  OF    LTENS. 

Chapter  T.    Liens  in  general. 

II.    Liens  of  mechanics  and  others  upon 
real  property. 
TIL    Certain  liens  for  salaries  and  wages. 

CHAPTER  I. 

LIENS   IN   GENERAL. 
§  1180.     Definition  of  lien. 

^  1180.  A  lien  Is  a  charge  imposed  upon  spe- 
cific property  by  which  it  is  made  security  for  the 
i)erformance  of  an  act. 

Lien,  definition  of— Civil  Code,  sec.  2872. 

Priority  of  liens— Civil  Code.  sec.  2897. 


LIEXS    OF    MECHANICS,    ETC.  §  1183 


CHAPTER  11. 

LIENS    OF    MECHANICS     AND      OTHERS      UPON    REAL 
PROPERTY. 

§  1183.     What    laborers,    contractors,    etc.,    may    have    liens 

upon. 
§  1184.     Liens   for   grading   and   filling   lots   and   streets. 
§  118.5.     What  interest  in  the  land  subject  to  the  lien. 
§  1183.     Effect  of  liens. 

§  1187.     Claim  of  lien  to  be  filed  in  recorder's  ofiice. 
§  1188.     Lien  upon  two  or  more  pieces  of  property.     Amount 

due  from  each  to  be  designated. 
§  1189.     Claim  to  be  recorded!     Fees  of  recorder. 
§  1190.     Time   of   continuance  of   lien, 
g  1191.     Service  of  summons  by  publication, 
li  1192.     Subcontractors,    who    are,    and    when    paid    out    of 

proceeds  of  sale. 
§  1193.     Costs. 

§  1194.     Court  to  declare  rank  of  liens. 
§  1195.     Execution  for  deficit. 
§  1196.    Actions  for  separate  liens  may  be  joined,  when  and 

how. 
§  1197.     Lien  does  not  impair  right  to  proceed  for  recovery 

of  the  debt.  ^ 

§  1198.     Rules  of  practice.  ^ 

§  1199.     New  trials  and  appeals.  -- 

§  1200.     Failure  or  abandonment.  ^ 

§  1201.     Waiver  of  claims. 

S  1202.     False  claims.  V 

§  1203.     Bond  of  contractor  to  be  filed.  VJ 

§  1183.  Mecliauics,  material  meii,  coiitractors, 
subcontractor:-;,  artisans,  architects,  machinists, 
builders,  miners,  and  all  persons  and  laborers  of  j^ 
every  class,  performinj?  labor  upon  or  furnishing^ 
materials  to  be  used  in  the  construction,  altera- 
tion, addition  to,  or  repair,  eitlier  in  wliole  or  in 
part,  of  any  building',  wharf,  bridj^e,  ditch,  flume, 
aqueduct,  tunnel,  fence,  macliinery,  railroad, 
wagon  road,  or  other  structure,  shall  have  a  lien 
upon  the  property  upon  which  tliey  have  bestow-  )^ 
ed  labor,  or  fiu-nislied  materials,  for  the  value  of  ^ 
sucli  labor  done  and  materials  furnished,  whether^ 


§  1183  LIENS    OF    MECHANICS,    ETC.  462 

cat  the  iiistaiice  of  the  owiier  or  ol'  auy  other  per- 
son acting  by  his  authority,  or  under  him,  as  con- 
tractor or  otherwise;  and  auy  person  who  per- 
I'onus  hibor  in  auy  mining  claim  or  claims,  has  a 
lieu  upon  the  same,  and  the  worlvs  owned  and 
used  by  the  owners  for  reducing  the  ores  from 
such  mining  claim  or  claims,  for  the  work  or  labor 
done,  or  materials  furnished  by  each  respectively, 
whether  done  or  furnished  at  the  instance  of  the 
owner  of  the  building  or  other  improvement,  or 
iiis  agent,  and  every  contractor,  subcontractor, 
architect,  builder,  or  oth^r  person  having  charge 
of  any  mining,  or  of  the  construction,  alteration, 
addition  to,  or  repair,  either  in  whole  or  in  part, 
of  any  building  or  other  improvement  as  afore- 
said, shall  be  held  to  be  the  agent  of  the  owner, 
for  purposes  of  this  chapter.  In  case  of  a  contract 
for  the  work,  betAveen  the  reputed  owner  and  his 
contractor,  the  lieu  shall  extend  to  the  entire  con- 
tract price,  and  such  contract  shall  operate  as  a 
lien  in  favor  of  all  persons,  except  the  contractor, 
to  the  extent  of  the  whole  contract  price;  and" 
after  all  such  liens  are  satisfied  then,  as  a  lien 
for  any  balance  of  the  contract  price  in  favor  of 
the  contractor.  All  such  contracts  shall  be  in 
Avriting  when  the  amount  agreed  to  be  paid  there- 
under exceeds  one  thousand  dollars,  and  shall  be 
subscribed  by  the  parties  thereto,  and  the  said 
contract,  or  a  memorandum  thereof,  setting  forth 
tlie  names  of  all  the  parties  to  the  contract,  a  de- 
scription of  the  property  to  be  affected  thereby, 
together  with  a  statement  of  the  general  charac- 
ter of  the  work  to  be  done,  the  total  amount  to 
be  paid  thereunder,  and  the  amounts  of  all  par- 
tial i)ayments.  together  with  the  times  when  such 
])aymen1s  shall  be  due  and  payable,  shall,  before 
the  M'ork  is  commenced,  be  filed  in  the  office  of 
the  County  Kecorder  of  the  county  or  city  and 


463  LIENS    OF    MECHANICS,    ETC.  §  1184 

county,  where  the  property  is  situated,  Avho  shall 
receive  one  dollar  for  such  tiling;  otherwise  thej' 
shall  be  wholly  void,  and  no  recovery  shall  be 
had  thereon  by  either  party  thereto;  and  in  such 
case,  the  labor  done  and  materials  furnished  by 
all  persons  aforesaid,  except  the  contractor,  shall 
be  deemed  to  have  been  done  and  furnished  at 
the  personal  instance  of  the  owner,  and  they  shall 
have  a  lieu  for  the  value  tliereof.  [Amendment 
approved  March  15,  1887;  Stats.  1887,  152.  In  ef- 
fect March  15,  1887.  J 

Mechanic's  lien,  generally:    See  sees.  1x93-1190. 

Labor,  etc.:    Sec.  1184. 

§  1184.  No  part  of  the  contract  price  shall,  by 
the  terms  of  any  such  contract,  be  made  payable, 
nor  shall  the  same  or  any  part  thereof  be  paid  in 
advance  of  the  commencement  of  the  work,  but 
the  contract  price  shall,  by  the  terms  of  the  con- 
tract, be  made  payable  in  installments  at  specified 
times  after  the  commencement  of  the  worlv,  or  on 
the  completion  of  specified  portions  of  the  worlv, 
or  on  the  completion  of  the  whole  work;  provided, 
that  at  least  twenty-five  per  cent  of  the  whole 
contract  price  shall  be  made  payable  at  least 
thirty-five  days  after  the  final  completion  of  the 
contract.  No  payment  made  prior  to  the  time 
when  the  same  is  due,  under  the  terms  and  condi- 
tions of  the  contract,  shall  be  valid  for  the  pur- 
pose of  defeating,  diminishing,  or  discharging  any 
lien  in  favor  of  any  person,  except  the  contractor, 
but  as  to  such  liens,  such  payment  shall  be  deem- 
ed as  if  not  made,  and  shall  be  applicable  to  such 
liens,  notwithstanding  that  the  contractor  to 
whom  it  was  paid  may  thereafter  abandon  his 
contract,  or  be  or  become  indebted  to  the  reputed 
owner  in  any  amount  for  damages  or  otherwise, 
for  nonperformance  of  his  contract  or  otherwise. 
As  to  all  liens,  except  that  of  the  contractor,  the 


§  1184  LIENS    OF    MECHANICS.    ETC.  464 

whole  contract  price  shall  be  payable  in  money, 
and  shall  not  be  diminished  by  any  prior  or  sub- 
sequent indebtedness^,  oti'sev,  or  counterclaim,  in 
favor  of  the  reputed  owner  and  against  the  con- 
tractor; no  alteration  of  any  such  contract  shall 
affect  any  lien  acquired  under  the  provision^;  of 
this  chapter.  In  case  such  contracts  and  altera- 
tions thereof  do  not  conform  substantially  to  the 
provisions  of  this  section,  the  labor  done  and  ma- 
terials furnished  by  all  persons  except  the  con- 
tractor shall  be  deemed  to  have  been  done  and 
furnished  at  the  personal  instance  and  request  of 
the  person  who  contracted  with  the  contractor, 
and  they  shall  have  a  lien  for  the  value  thereof. 
Any  of  the  persons  mentioned  in  section  eleven 
hundred  and  eighty-three,  except  the  contractor, 
may  at  any  time  give  to  the  reputed  owner  a 
written  notice  that  they  have  performed  labor  or 
furnished  materials,  or  both,  to  the  contractor,  or 
other  person  acting  by  authority  of  the  reputed 
owner,  or  that  they  have  agreed  to  do  so,  stating 
in  general  terms  the  kind  of  labor  and  materials, 
and  the  name  of  the  person  to  or  for  whom  the 
same  was  done  or  furnished,  or  both,  and  the 
amount  in  value,  as  near  as  may  be,  of  that  al- 
ready done  or  furnished,  or  both,  and  of  the  whole 
agreed  to  be  done  or  furnished,  or  both.  Such 
notice  may  be  given  by  delivering  the  same  to  th<^ 
reputed  owner  personally,  or  by  leaving  it  at  his 
residence  or  place  of  business,  with  some  person 
in  charge,  or  by  delivering  it  to  his  architects,  or 
by  leaving  it  at  their  residence  or  place  of  busi- 
ness, with  some  person  in  charge,  or  by  posting 
It  in  a  conspicuous  place  upon  the  mining  claim 
or  improvement.  No  such  notice  sliall  be  invalid 
by  reason  of  any  defect  of  form,  provided  it  is 
sufficient  to  inform  the  reputed  owner  of  the  sub- 
stantial matters  herein  provided  for.  or  to  put  him 


465  LIENS   OF   MECHANICS,    ETC.       §§  1185,  1186 

upon  inquiry  as  to  such  matters.  Upon  such  no- 
tice being  given,  it  shall  be  the  duty  of  the  per- 
son who  contracted  Avith  the  contractor  to,  and 
he  shall,  withhold  from  his  contractor,  or  from 
any  other  person  acting  under  such  reputed  own- 
er, and  to  whom  by  said  notice  the  said  labor  or 
materials,  or  both,  have  been  furnished,  or  agreed 
to  be  furnished,  sutticient  money  due,  or  that  may 
become  due  to  such  contractor,  or  other  person, 
to  answer  such  claim  and  any  lien  that  may  be 
tiled  therefor  for  record  under  this  chapter,  in- 
cluding counsel  fees  not  exceeding  one  hundred 
dollars  in  each  case,  besides  reasonable  costs  pro- 
vided for  in  this  chapter.  [Amendment  approved 
March  15.  1887;  Stats.  1887,  152.  In  effect  March 
15,  1887.] 

^  1185.  The  land  upon  which  any  building,  im- 
provement, or  structure  is  constructed,  together 
with  a  convenient  space  about  the  same,  or  so 
much  as  may  be  required  for  the  convenient  use 
and  occupation  thereof,  to  be  determined  by  the 
court  on  rendering  judgment  is  also  subject  to  the 
lien,  if  at  the  commencement  of  the  work,  or  of 
the  furnishing  of  the  materials  for  the  same,  the 
land  belonged  to  the  person  who  caused  said 
building,  improvement,  or  structure  to  be  con- 
structed, altered,  or  repaired;  but  if  such  person 
owned  less  than  a  fee  simple  estate  in  such  land, 
then  only  his  interest  therein  is  subject  to  suc^ 
lien.  I  Amendment  approved  March  24,  1874; 
Amendments  1873-4.  351.     In  effect  .July  1.  1874.] 

§  1186.  The  liens  provided  for  in  this  chapter 
nre  preferred  to  any  lien,  mortgage,  or  other  in- 
cumbrance which  may  have  attached  subsequent 
to  the  time  Avhen  the  building,  improvement,  or 
structure  was  commenced,   worlv   done,   or   mate- 


§  1187  LIENS    OF    MECHANICS,    ETC.  466 

rials  were  commenced  to  be  furnished;  also,  to 
any  lien,  mortgage  oi*  otlier  incumbrance  of  whicli 
the  lien  holder  had  no  notice,  and  which  was  un- 
recorded at  the  time  the  building,  improvement 
or  structure  was  commenced,  work  done,  or  the 
materials  were  commenced  to  be  furnished. 
Parties  to  suit:    Sec.  1100. 

§  1187.  The  owner  of  any  property  on  which 
labor  has  been  performed,  or  for  which  materials 
have  been  furnished  to  be  used  in  the  construc- 
tion, alteration,  addition  to,  or  repair,  either  in 
whole  or  in  part,  of  any  worli,  mentioned  in  sec- 
tion eleven  hundred  and  eighty-three  of  this  Code 
must,  within  ten  days  after  tlie  completion  there- 
of, or  witliiu  forty  days  after  cessation  from  la- 
bor upon  any  unfinished  contract,  or  upon  any 
unfinislied  building,  improvement,  or  structure,  or 
the  alteration,  addition  to,  or  the  repair  thereof, 
file  for  record  in  the  office  of  the  County  Record- 
er of  the  county,  or  city  and  county,  in  which  such 
property  or  some  part  thereof  is  situated,  a  notice 
setting  forth  the  date  when  such  building,  im- 
provement, or  structure,  or  the  alteration,  addi- 
tion to,  or  repair  thereof,  was  actually  completed, 
or  in  case  of  cessation  from  labor  for  thirty  days, 
the  date  on  which  such  cessation  actually  occurred, 
and  said  notice  shall  also  contain  the  name  and 
the  nature  of  the  title  of  the  person  who  caused 
the  said  building,  improvement,  or  structure  to  be 
erected,  or  said  alteration,  addition  to,  or  repair 
to  be  made,  and  also  a  description  of  the  prop- 
erty sufficient  for  identification,  and  said  notice 
must  be  verified  by  said  OAvner  or  some  other  per- 
son in  his  behalf.  In  case  any  such  owner  neglect 
to  file  said  notice  as  herein  required,  within  the 
time  heroin  required,  then  the  said  owner  and  all 
persons  deraigning  title  from   him,   and   all  per- 


437  LIENS    OF    MECHANICS,    ETC.  §  118^ 

sons  claiming  an  interest  in  said  property,  shall 
be  estopped  in  anj^  proceedings  brought  to  fore- 
close any  mechanics'  lien  or  liens,  provided  for  in 
this  chapter,  from  maintaining  a  defense  therein 
based  on  the  ground  that  said  lien  or  liens  have 
not  been  filed  within  the  time  provided  in  this 
chapter.  Said  notice,  when  so  filed  for  record 
must  be  recorded  by  the  County  Recorder  with 
whom  the  same  is  filed  for  record,  and  the  fee 
for  recording  the  same  shall  be  the  sum  of  one 
dollar. 

Every  original  contractor,  at  any  time  after  the 
completion  of  his  contract,  and  until  the  expira- 
tion of  sixty  days  after  the  tiling  of  said  notice 
of  completion  or  notice  or  cessation  of  labor  by 
the   owner,   and   every   person   save   the   original 
contractor  claiming  the  benefit  of  this  chapter  at 
any  time  after  the  completion  of  any  building,  im- 
provement, or  structure,  or  of  the  alteration,  addi- 
tion to,  or  repair  thereof,  and  until  the  expiration 
of  thirty  days  after  the  filing  of  said  notice  of 
completion     or     cessation     by     said     owner,     or 
within    thirty    days    after    the    performance     of 
any  labor  in  a  mining  claim,  must  file  for  record 
with  the  Coimty  Recorder  of  the  county,  or  city 
and  county,  in  which  such  property  or  some  part 
thereof  is  situated,  a  claim  containing  a  statement 
of  his  demand,  after  deducting  all  just  credits  and 
offsets,  with  the  name  of  the  owner  or  reputed 
owner,  if  Ivuown,  and  also  the  name  of  the  per- 
son by  whom  he  was  employed,  or  to  whom  he 
furnished  the  materials,  with  a  statement  of  the 
terms,  time  given,  and  conditions  of  his  contract, 
and  also  a  description  of  the  property  to  be  charg- 
ed with  the  lien,  sufficient  for  identification,  which 
claim  must  be  verified  by  the  oath  of  himself  or 
of  some  other  person;  provided,  however,  that  in 
any  event  all  claims  of  lien  must  be  filed  within 


5iJ  118S,  1189       LIENS   OF   MECHANICS,    ETC.  468 

ninety  days  after  the  completion  of  said  building, 
improvement,  or  structure,  or  tlie  alteration,  ad- 
dition to,  or  repair  tliereof.  Any  trivial  imperfec- 
tion in  tlie  said  worlv,  or  in  the  construction  of  any 
building",  improvement,  or  structure,  or  of  the  al- 
teration, addition  to,  or  repair  thereof,  shall  not 
be  deemed  such  a  lack  of  completion  as  to  pre- 
vent the  tiling  of  any  lien;  and  in  all  cases  the  oc- 
cupation or  use  of  a  building,  improvement,  or 
structure,  by  the  owner,  or  his  representative,  or 
the  acceptance  by  said  owner  or  his  agent  of  said 
building,  improvement,  or  structure,  and  cessation 
from  labor  for  thirty  days  upon  any  contract  or 
upon  any  building,  improvement,  or  structure,  or 
the  alteration,  addition  to,  or  repair  thereof,  shall 
be  deemed  equivalent  to  a  completion  thereof  for 
all  the  purposes  of  this  chapter.  [Amendment  ap- 
proved March  27,  1897;  Stats.  1897,  1187.] 

Tnis  section  was  also  amended  in  1887;  Stats. 
1887,  p.  152. 

Verification  of  claim;    Sec.  446. 

§  1188.  In  every  case  in  which  one  claim  is 
tiled  against  two  or  more  buildings,  mining  claims 
or  other  improvements  owned  by  the  same  person, 
the  person  tiling  such  claim  must,  at  the  same 
time,  designate  the  amount  due  to  him  on  each 
of  such  buildings,  mining  claims,  or  other  im- 
provements, otherwise  the  lien  of  such  claim  is 
postponed  to  other  liens.  The  lien  of  such  claim- 
ant does  not  extend  beyond  the  amount  desig- 
nated, as  against  otlier  creditors  having  liens  by 
.iudgment.  mortgage,  or  otherwise,  upon  either  of 
such  buildings  or  other  improvements,  or  upon  the 
land  upon  M'hich  the  same  are  situated. 

§  1189.  The  recorder  must  record  the  claim  in 
,1  bool:  Icept  by  him  for  that  purpose,  which  ree- 


469  LIENS   OF   MECHANICS,   ETC.       §§  1190,  1192; 

ord  must  be  indexed  as  deeds  and  other  convey- 
ances are  required  by  law  to  be  indexed,  and  for 
which  he  may  receive  the  same  fees  as  are  al- 
lowed by  law  for  recording  deeds  and  other  in- 
struments. 

§  1190.  No  lien  provided  for  in  this  chapter 
binds  any  building,  mining  claim,  improvement,  or 
structure,  for  a  longer  period  than  ninety  days  af- 
ter the  same  has  been  filed,  unless  proceedings 
be  commenced  in  a  proper  court  within  that  time 
to  enforce  the  same,  or,  if  a  credit  be  given,  then 
ninety  days  after  the  expiration  of  such  credit; 
but  no  Uen  continues  in  force  for  a  longer  time 
than  two  years  from  the  time  the  worlv  is  com- 
pleted, by  any  agreement  to  give  credit. 

Complaint,  generally:    Sec.  1198. 

Court  proceedings  commenced— personal  action: 
Sec.  1197;  intervention:    Sec.  387. 

Answer:    Sec.  1198. 

§  1191.  Any  person  who,  at  the  request  of  the 
reputed  owner  of  any  lot  in  any  incorporated  city 
or  lown,  grades,  fills  in,  or  otherwise  improves, 
the  same,  or  the  street  or  sidewalli  in  front  of  or 
adjoining  the  same,  or  constructs  any  areas,  or 
vaults,  or  cellars,  or  rooms,  under  said  sidewall^, 
or  maizes  any  improvements  in  connecdon  there- 
with, has  a  lien  upon  such  lot  for  his  Avorli  done 
and  materials  furnished.  [Amendment  approved 
March  15,  1887;  Stats.  1887,  152.  In  effect  March 
15.  1887.] 

§  1192.  Every  building  or  other  improvement 
mentioned  in  section  one  thousand  one  hundred 
and  feighty-three  of  this  Code,  constructed  upon 
any  lands  with  the  knowledge  of  the  owner,  or 
the  person  having  or  claiming  any  interest  there- 
Code  Civ.  Froc— 40. 


^  1193  LIENS    OF    MECHANICS,    ETC.  470 

iu,  shall  be  held  to  have  been  constructed  at  the 
instance  of  such  owner  or  person  having  or  claim- 
ing any  interest  therein,  and  the  interest  owned 
or  claimed  shall  be  subject  to  any  lien  filed  in  ac- 
cordance with  the  provisions  of  this  chapter,  un- 
less such  owner  or  person  having  or  claiming  an 
interest  therein  shall,  within  three  days  after  he 
^hall  have  obtained  knowledge  of  the  construc- 
tion, alteration,  or  repair,  or  the  intended  con- 
struction, alteration,  or  repair,  give  notice  that  he 
will  not  be  responsible  for  the  same,  by  posting 
Si  notice  in  writing  to  the  effect,  in  some  conspic- 
uous place  upon  said  land,  or  upon  the  building 
or  other  improvement  situated  thereon.  [Amend- 
ment approved  March  30,  1874;  Amendments  1873- 
4,  410.    In  effect  May  29,  1874.  J 

§  1193.  The  contractor  shall  be  entitled  to  re- 
cover upon  a  lien  filed  by  him  only  such  amount 
as  may  be  due  to  him  according  to  the  terms  of 
his  contract,  after  deducting  all  claims  of  other 
parties  for  work  done  and  materials  furnished, 
as  aforesaid;  and  in  all  cases  where  a  lien  shall  be 
filed,  under  this  chapter,  for  work,  done  or  mate- 
rials furnished  to  any  contractor,  he  shall  defend 
any  action  brought  thereupon  at  his  own  expense; 
and  during  the  pendency  of  such  action,  the  own- 
er may  withhold  from  the  conti-actor  the  amount 
of  money  for  which  lien  is  filed;  and  in  case  of 
judgment  against  the  owner  or  his  property,  upon 
the  lien,  the  said  owner  shall  be  entitled  to  de- 
duct from  any  amount  due  or  to  become  due  by 
him  to  the  contractor,  the  amount  of  such  judg- 
ment and  costs,  and  if  the  amount  of  such  judg- 
ment and  costs  shall  exceed  the  amount  due  by 
him  to  the  contractor,  or  if  the  owner  shall  have 
settled  with  the  contractor  in  full,  he  shall  be  en- 
titled to   recover  back  from  the  contractor  any 


471  LIENS   OF   MECHANICS,   ETC.       §§  1194,  1195. 

amount  so  paid  bj^  him,  the  said  owner,  in  ex- 
cess of  the  contract  price,  and  for  which  the  con- 
tractor was  originally  the  party  liable.  [Amend- 
ment approved  March  30,  1874;  Amendments  1873- 
4,  411.     In  effect  May  29,  1874.] 

§  1194.  In  every  case  in  which  different  liens 
are  asserted  against  any  property,  the  court  in  the 
judgment  must  declare  the  rank  of  each  lien,  or 
class  of  liens,  which  shall  be  in  the  following  or- 
der, viz:  1.  All  persons  performing  manual  labor 
in,  on,  or  about  the  same;  2.  Persons  furnishing 
materials;  3.  Subcontractors;  4.  Original  contrac- 
tors. And  the  proceeds  of  the  sale  of  the  property 
must  be  applied  to  each  lien  or  class  of  liens  in  the 
order  of  its  rank;  and  whenever,  in  the  sale  of  the 
property  subject  to  the  lien,  there  is  a  deficiency 
of  proceeds,  judgment  may  be  docketed  for  the  de- 
ficiency in  like  manner  and  with  like  effect  as  in 
actions  for  the  foreclosure  of  mortgages.  [Amend- 
ment approved  March  18,  1885;  Stats.  1885,  145.} 

Judgment,  generally:  Sec.  664,  and  see  sec.  1192, 
ante. 

§  1195.  Any  number  of  persons  claiming  liens 
may  join  in  the  same  action,  and  when  separate 
actions  are  commenced,  the  court  may  consoli- 
date them.  The  court  must  also  allow,  as  a  part 
of  the  costs,  the  money  paid  for  filing  and  re- 
cording the  lien,  and  reasonable  attorneys'  fees 
in  the  Superior  and  Supreme  Courts,  such  costs, 
and  attorneys'  fees  to  be  allowed  to  each  lien 
claimant  whose  lien  is  established,  whether  he  be 
plaintiff  or  defendant,  or  whether  they  all  join 
in  one  action,  or  separate  actions  are  consolidated. 
[Amendment  approved  March  18,  1885;  fetats. 
1885,  146.] 

Consolidation  of  actions— generallv:    Sec.  1048. 


§§  1196-1200       LIENS    OF   MECHANICS,    ETC.  472 

§  1196.  Whenever  materials  shall  have  been 
furnished  for  use  in  the  construction,  alteration 
or  repair,  of  any  building  or  other  improvement, 
such  materials  shall  not  be  subject  to  attachment, 
execution,  or  other  legal  process,  to  enforce  any 
debt  due  by  the  purchaser  of  such  materials,  ex- 
cept a  debt  due  for  the  purchase  money  thereof, 
so  long  as  in  good  faith  the  same  are  about  to  be 
applied  to  the  construction,  alteration,  or  repair 
of  such  building,  mining  claim,  or  other  improve- 
ment. [Amendment  approved  March  30,  1874; 
Amendments  1873-4.  412.     In  effect  *]May  29,  1874.] 

§  1197.  Nothing  contained  in  this  chapter  shall 
be  construed  to  impair  or  affect  the  right  of  any 
person  to  whom  any  debt  may  be  due  for  work 
done  or  materials  furnished  to  maintain  a  per- 
sonal action  to  recover  such  debt  against  the  per- 
son liable  therefor.  [Amendment  approved  March 
24.  1874;  Amendments  1873-4,  351.  In  effect  July 
1,  1874.] 

§  1198.  Except  as  otherwise  provided  in  this 
chapter,  the  provisions  of  part  two  of  this  Code 
are  applicable  to  and  constitute  the  rules  of  prac- 
tice in  the  proceedings  mentioned  in  this  chap- 
ter. 

See  ante,  sec.  307  et  seq. 

§  1199.  The  provisions  of  part  two  of  this  Code 
relative  to  new  trials  and  appeals,  except  in  so  far 
as  they  are  inconsistent  Avith  the  provisions  of  this 
chapter,  apply  to  the  proceedings  mentioned  in 
thi.s  chapter. 

See  ante,  sees.  656  et  seq,  and  sees.  936  et  seq. 

§  1200.  In  case  the  contractor  shall  fail  to  per- 
form  his   contract   in  full,   or  shall   abandon   the 


473  LIENS   OF   MECHANICS,    ETC.       S§  1201,  1202 

same  before  completion,  the  portion  of  the  con- 
tract price  applicable  to  the  liens  of  other  per- 
sons than  the  contractor  shall  be  fixed  as  folloAvs: 
from  the  value  of  the  work  and  materials  already 
done  and  furnished  at  the  time  of  such  failure 
or  abandonment,  including  materials  then  actual- 
ly delivered  or  on  the  ground,  which  shall  there- 
upon belong  to  the  owner,  estimated  as  near  as 
may  be  by  the  standard  of  the  whole  contract 
price,  shall  be  deducted  the  payments  then  due 
and  actually  paid,  according  to  the  terms  of  the 
contract  and  the  provisions  of  sections  one  thous- 
and one  hundred  and  eighty-three  and  one  thous- 
and one  hundred  and  eighty-four,  and  the  remain- 
der shy  11  be  deemed  the  portion  of  the  contract 
price  applicable  to  such  liens.  [New  section  ap- 
proved March  IS,  1885;  Stats.  1885,  146.] 

§  1201.  It  shall  not  be  competent  for  the  owner 
and  contractor,  or  either  of  them,  by  any  term  of 
their  contract,  or  otherwise,  to  waive,  affect,  or 
impair  the  claims  and  liens  of  other  persons, 
whether  with  or  without  notice,  except  by  their 
written  consent,  and  any  term  of  the  contract  to 
that  effect  shall  be  null  and  void.  [New  section 
approved  March  18,  1885;  Stats.  1885,  146.] 

§  1202.  Any  person  M'ho  shall  willfully  give  a 
false  notice  of  his  claim  to  the  owner,  under  the 
provisions  of  section  one  thousand  one  hundred 
and  eighty-four,  shall  forfeit  his  lien.  Any  per- 
son who  shall  willfully  include  in  his  claim,  filed 
under  section  one  thousand  one  hundred  and 
eighty-seven,  worlv  or  materials  not  performed  up- 
on or  furnished  for  tlie  property  described  in  the 
claim  shall  forfeit  his  lien.  If  the  owner  and  his 
contractor  shall  directly  or  indirectly  conspire  to 
or  agree  that  the  written  contract  filed  shall  ap- 


Si  1203  LIENS    OF    MECHANICS,    ETC.  474 

pear  to  show  the  contract  price  to  be  less  than 
it  really  is,  and  it  shall  accordingly  so  show,  then 
such  contract  shall  be  wholly  void,  and  no  recov- 
ery shall  be  had  thereon  by  either  party  thereto; 
and  in  such  case  the  labor  done  and  materials  fur- 
nished by  all  persons,  except  the  contractor,  shall 
be  deemed  to  have  been  done  and  furnished  at  the 
personal  instance  of  the  owner  and  they  shall 
have  a  lien  for  the  value  thereof.  [New  section 
approved  March  18,  1885;  Stats.  1885,  146.] 

§  1203.  Every  contract  required  to  be  filed 
under  the  provisions  of  this  chapter  shall  be 
accompanied  by  a  good  and  sufficient  bond 
in  an  amount  equal  to  at  least  twenty-five  per 
cent  of  the  contract  price,  which  said  bond 
shall  be  filed  at  the  same  time  and  in  the  same 
manner  as  herein  provided  for  the  filing  of 
such  contract  or  memorandum  thereof.  Said 
bond  shall,  by  its  terms,  be  made  to  inure  to  the 
benefit  of  any  and  all  persons  who  perform  labor 
for  or  furnish  materials  to  the  contractor  or  any 
person  acting  for  him  or  by  his  authority;  and 
any  such  person  shall  have  an  action  to  recover 
upon  said  bond,  against  the  principal  and  sure 
ties,  or  either  of  them,  for  the  value  of  such  laboi 
or  materials,  or  both,  not  exceeding  the  amount 
of  the  bond;  but  such  action  shall  not  affect  his 
lien  nor  any  action  to  foreclose  the  same,  except 
that  there  shall  be  but  one  satisfaction  of  his 
claim,  with  costs  and  counsel  fees.  Any  failure  to 
comply  with  the  provision  of  this  section  shall 
render  the  owner  and  contractor  jointly  and  sev- 
erally liable  in  damages  to  any  and  all  material- 
men, laborers,  and  subcontractors  entitled  to  liens 
upon  the  property  affected  by  said  contract.  [New 
-section  added  March  23,  1893;  Stats.  1893,  202.] 


475  LIENS    FOR    SALARIES.  §§  1204,  1205 

CHAPTER  111. 

CERTAIN    LIENS    FOR    SALARIES    AND    WAGES. 

§  1204.    Preferred  creditors  when  assignment  of  property  is 

made. 
§  1205.     Same,  against  estates. 

§  1206.    Same,  in  cases  of  execution  or  attachment. 
§  1207.     Dispute  of  claim  or  portion  thereof— costs. 

§  1204.  In  all  assignments  of  property  made 
by  jiny  person  to  trustees  or  assignees,  on  account 
of  the  inability  of  the  person,  at  the  time  of  the 
assignment,  to  pay  his  debts,  or  in  proceedings  in 
insolvency,  the  wages  and  salaries  of  the  miners, 
mechanics,  salesmen,  servants,  clerks,  laborers 
employed  by  such  person  or  any  other  person,  who 
renders  services  or  performs  work  to  the  amount 
of  one  hundred  dollars  each,  and  for  services  ren- 
dered within  sixty  days  previously,  are  preferred 
claims,  and  must  be  paid  by  such  trustees  or  as- 
signees before  any  other  creditor  or  creditors  of 
the  assignor.  [Amendment  approved  March  9, 
1893;  Stats.  1893,  97.] 

Assignments  for  benefit  of  creditors— Civil  Code, 
sees.  3449,  3473. 

Proceedings  in  insolvency:   See  sec.  1822. 

§  1205.  In  case  of  the  death  of  any  employer, 
the  wages  of  each  miner,  mechanic,  salesman, 
clerk,  servant,  laborer,  or  any  other  person  who 
renders  services,  or  performs  work  for  services 
rendered  within  the  sixty  days  next  preceding  the 
death  of  the  employer,  not  exceeding  one  hun- 
dred dollars,  rank  in  priority  next  alter  the  fu- 
neral expenses,  expenses  of  the  last  sickness,  the 
charges  and  expenses  of  administering  upon  the 
estate,  and  the  allowance  to  the  widow  and  infant 
children  and  must  be  paid  before  other  claims 


§  1206  LIENS  FOR  SALARIES.  476 

agaiust  the  estate  of  the  deceased  person. 
[Amendment  approved  March  9,  1893;  Stats.  1893, 
97.] 

Estate  of  deceased  persons,  payment  of  debts, 
generally:    Sec.  1643  et  seq. 

§  1206.  In  cases  of  executions,  attachments, 
and  writs  of  a  similar  nature,  issued  against  any 
person,  except  for  claims  for  labor  done, 
any  miners,  mechanics,  salesmen,  servants, 
clerlvs  and  laborers,  or  any  other  person 
who  renders  services  or  performs  work,  who 
liave  claims  against  the  defendant  for  labor 
done  or  work  performed,  may  give  notice  of 
their  claims,  and  the  amount  thereof,  sworn  to  by 
the  person  making  the  claim,  to  the  creditor  and 
the  officer  executing  either  of  such  writs,  at  any 
time  before  the  actual  sale  of  property  levied  on, 
or,  in  the  event  of  a  levy  upon  money,  at  any  time 
before  the  transfer  of  such  money  under  execution 
and,  unless  such  claim  is  disputed  by  the  debtor 
or  a  creditor,  such  officer  must  pay  to  such  person, 
out  of  the  proceeds  of  the  sale,  or  in  the  event  of 
a  levy  on  money,  out  of  such  money,  the  amount 
each  is  entitled  to  receive  for  services  rendered 
within  the  sixty  days  next  preceding  the  levy  of 
the  writ,  not  exceeding  one  hundred  dollars.  If 
any  or  all  of  the  claims  so  presented  and  claiming 
preference  under  this  section  are  disputed  by 
either  the  debtor  or  a  creditor,  the  person  present- 
ing the  same  must  commence  an  action  within  ten 
days  for  the  recovery  thereof,  and  must  prose- 
cute his  action  with  due  diligence,  or  be  forever 
barred  from  any  claim  or  priority  of  payment 
thereof;  and  the  officer  shall  retain  possession  of 
so  much  of  the  proceeds  of  the  sale  or  money  as 
may  be  necessary  to  satisfy  such  claim  until  the 
determination  of  such  action:  and  in  case  judg- 


477  LIENS    FOR    SALARIES.  §  1207 

inent  be  had  for  the  claim,  or  any  part  thereof, 
carryiug  costs,  the  costs  taxable  therein  shall 
lil^ewise  be  a  preferred  claim  with  the  same  rank 
as  the  original  claim.  [Amendment  approved 
March  9,  1893;  Stats.  1893,  87.] 

§  1207.  The  debtor  or  creditor  intending  to  dis- 
pute a  claim  presented  under  the  provisions  of  the 
last  section  shall,  within  ten  days  after  receiving 
notice  of  such  claim,  serve  upon  the  claimant  and 
the  officer  executing  the  writ  a  statement  in  writ- 
ing, verified  by  the  oath  of  the  debtor  or  the  per- 
son disputing  such  claim,  setting  forth  that  no 
part  of  said  claim,  or  not  exceeding  a  sum  speci- 
fied, is  justly  due  from  the  debtor  to  the  claimant 
for  services  rendered  within  the  sixty  days  next 
preceding  the  levy  of  the  writ.  If  the  claimant 
bring  suit  on  a  claim  which  is  disputed  in  part  only 
and  fail  to  recover  a  sum  exceeding  that  which 
was  admitted  to  be  due,  he  shall  not  recover  costs, 
but  costs  shall  be  adjudged  against  him.  [New 
section  approved  March  7,  1883;  Stats.  1883.  47. 
In  effect  March  7,  1883.] 


479  CONTEMPTS  §  1209 


TITLE    V. 

OF  CONTEMPTS. 

§  1209.    What  acts   or   omissions  are  contempts. 

§  1210.  Re-entry  on  property  after  eviction,  when  a  con- 
tempt. 

§  1211.  A  contempt  committed  in  the  presence  of  the  court 
may  be  punished  summarily.  When  not  so  com- 
mitted, an  affidavit  or  statement  shall  be  made. 

§  1212.  A  warrant  of  attachment  may  issue  or  a  notice  to 
show  cause. 

§  1213.  Bail  may  be  given  by  a  person  arrested  under  such 
warrant. 

§  1214.  Sheriff  must,  upon  executing  the  warrant,  arrest 
and   detain   the   person   until   discharged. 

§  1215.    Bail  bond,  form  and  conditions  of. 

§  1216.  Officer  must  return  warrant  and  undertaking,  if 
any. 

§  1217.    Hearing. 

§  1218,    Judgment  and  penalty,  if  guilty. 

§  1219.  If  the  contempt  is  the  omission  to  perform  any 
act,  the  person  may  be  imprisoned  until  perform- 
ance. 

§  1220.    If  a  party  fail  to  appear,  proceedings. 

§  1221.  Illness  sufficient  cause  for  non-appearance  of  party 
arrested.    Confinement  under  arrests  for  contempt. 

§  1222.    Judgment  and  orders  in  such  cases  final. 

§  1209.  The  following  acts  or  omissions  in  re- 
spect to  a  court  of  justice,  or  proceedings  there- 
in, are  contempts  of  the  authority  of  the  court: 

1.  Disorderly,  contemptuous,  or  insolent  beha- 
vior toward  the  judge  while  holding  the  court, 
tending  to  interrupt  the  due  course  of  a  trial  or 
other  judicial  proceeding; 

2.  A  breach  of  the  peace,  boisterous  conduct, 


§  1209  CONTEMPTS.  480 

or  violent  disturbance,  tending  to   interrupt  the 
due  course  of  a  trial  or  other  judicial  proceeding; 

8.  MisbeliaYior  in  office,  or  other  willful  neglect 
or  violation  of  duty  by  an  attorney,  counsel,  clerk, 
sheriff,  coroner,  or  other  person,  appointed  or 
elected  to  perform  a  judicial  or  ministerial  ser- 
vice; 

4.  Deceit  or  abuse  of  the  process  or  proceedings 
of  the  court  by  a  party  to  an  action  or  special  pro- 
ceeding; 

5.  Disobedience  of  any  lawful  judgment,  order 
or  process  of  the  court; 

6.  Assuming  to  be  an  officer,  attorney,  coun- 
sel of  a  court,  and  acting  as  such,  without  au- 
thority; 

7.  Rescuing  any  person  or  property',  in  the  cus- 
tody of  an  officer,  by  virtue  of  an  order  or  pro- 
cess of  such  court; 

8.  Unlawfully  detaining  a  witness,  or  party  to 
an  action,  while  going  to,  remaining  at,  or  re- 
turning from  the  court  where  the  action  is  on 
the  calendar  for  trial; 

9.  Any  other  unlawful  interference  with  the 
process  or  proceedings  of  a  court; 

10.  Disobedience  of  a  subpoena  duly  served,  or 
refusing  to  be  sworn  or  answer  as  a  witness; 

11.  When  summoned  as  a  juror  in  a  court,  neg- 
lecting to  attend  or  serve  as  such,  or  improperly 
conversing  with  a  party  to  nn  action,  to  be  tried 
at  such  court,  or  with  any  other  person,  in  rela- 
tion to  the  merits  of  such  action,  or  receiving  a 
communication  from  a  party  or  other  person  in 
respect  to  it,  without  immediately  disclosing  the 
same  to  the  court; 

12.  Disobedience  by  nu  inferior  tribunal,  mngis- 


481  CONTEMPTS.  £  1210 

trate,  or  officer,  of  the  lawful  judgment,  order,  or 
process  of  a  superior  court,  or  proceeding  in  an 
action  or  special  proceeding  contrary  to  law,  after 
such  action  or  special  proceeding  is  removed  from 
the  jurisdiction  of  such  inferior  tribunal,  magis- 
trate, or  officer.  Disobedience  of  the  lawful  or- 
ders or  process  of  a  judicial  officer  is  also  a  con- 
tempt of  the  authority  of  such  officer.  But  no 
speech  or  publication  reflecting  upon  or  concern- 
ing any  court  or  any  officer  thereof  shall  be  treat- 
ed or  punished  as  a  contempt  of  such  court,  unless 
made  in  the  immediate  presence  of  such  court 
while  in  session,  and  in  such  a  manner  as  to  ac- 
tually interfere  with  its  proceedings.  [Amend- 
ment approved  February  17,  1891;  Stats.  1891,  6. 
In  effect  immediately.] 

Powers  of  courts:   Sees.  128,  177,  178. 

Juror  willfully  failing  to  attend:    Sec.  238. 

Dispossession  of  party  placed  in  possession  un- 
der process:   Sec.  1210. 

Contempt,  powers  of  courts:  Sees.  128,  177,  178; 
in  justices'  courts:    Sees.  906-910. 

Misbehavior  of  attorney:    Sec.  287  et  seq. 

Disobedience  of  lawful  judgment  or  order— by 
executor:  Sec.  1440. 

§  1210.  Every  person  dispossessed  or  ejected 
from  or  out  of  any  real  property  by  the  judgment 
or  process  of  any  court  of  competent  jurisdiction, 
and  who,  not  having  right  so  to  do,  re-enters  into 
or  upon  or  talves  possession  of  any  such  real  prop- 
erty, or  induces  or  procures  any  person  not  hav- 
ing right  so  to  do,  or  aids  or  abets  him  therein,  is 
guilty  of  a  contempt  of  the  court  by  which  such 
judgment  was  rendered  or  from  which  such  pro- 
cess issued.    Upon  a  conviction  for  such  contempt 

Code  Civ.   Proc— 41. 


§  1211  CONTEMPTS.  482 

the  court  must  immediately  issue  an  alias  process, 
directed  to  the  proper  officer,  and  requiring  him  to 
restore  such  possession  to  the  party  entitled  under 
the  original  judgment  or  process  (or  to  his  lessor 
or  10  his  grantor),  and  no  appeal  from  the  order 
directing  the  issuance  of  an  alias  writ  of  posses- 
sion shall  stay  the  execution  thereof,  unless  a 
written  undertaliing  be  executed  on  the  part  of 
the  appellant,  with  two  or  more  sureties,  to  the 
efCect  that  he  will  not  commit  or  suffer  to  be  com- 
mitted any  waste  therein,  and  if  the  order  be 
affirmed  or  the  appeal  dismissed,  he  will  pay  the 
value  of  the  use  and  occupation  of  the  property 
from  the  time  of  his  unlawful  re-entry  until  the 
delivery  of  the  possession  thereof,  pursuant  to 
the  judgment  or  order,  not  exceeding  a  sum  to  be 
fixed  by  the  judge  of  the  court  by  which  the  or- 
der for  the  alias  writ  was  made,  and  which  must 
be  specified  in  the  undertaking.  [Amendment  ap- 
proved March  23,  1893;  Stats.  1893,  281.  In  ef- 
fect immediately.] 

§  1211.  When  a  contempt  is  committed  in  the 
immediate  view  and  presence  of  the  court,  or 
judge  at  chambers,  it  may  be  punished  summar- 
ily; for  which  an  order  must  be  made,  reciting 
the  facts  as  occurring  in  such  immediate  view 
and  presence,  adjudging  that  the  person  proceed- 
ed against  is  thereby  guilty  of  a  contempt,  and 
that  he  be  punished  as  therein  prescribed.  When 
the  contempt  is  not  committed  in  the  immediate 
view  and  presence  of  the  court,  or  judge  at  cham- 
bers, an  affidavit  shall  be  presented  to  the  court 
or  jadge,  of  the  facts  constituting  the  contempt 
or  a  statement  of  the  facts  by  the  referees  or 
arbitrators,  or  other  judicial  officer. 


483  CONTEMPTS.  §§  1212-1215 

Contempt  away  from  court,  attachment:  Sec. 
1212  et  seq. 

§  1212.  When  the  contempt  is  not  committed 
in  the  immediate  view  and  presence  of  the  court 
or  judge,  a  w^arrant  of  attachment  may  be  issued 
to  bring  the  person  charged  to  answer,  or,  with- 
out a  previous  arrest,  a  warrant  of  commitment 
may  upon  notice  or  upon  an  order  to  show  cause 
be  granted;  and  no  warrant  of  commitment 
can  be  issued  without  such  previous  attachment 
to  answer,  or  such  notice  or  order  to  show  cause. 

§  1213.  Whenever  a  warrant  of  attachment  is 
issued,  pursuant  to  this  title,  the  court  or  judge 
must  direct,  by  an  indorsement  on  such  warrant, 
that  the  person  charged  may  be  let  to  bail  for  his 
appearance  in  an  amount  to  be  specified  in  such 
indorsement. 

§  1214.  Upon  executing  the  warrant  of  attach- 
ment, the  Sheriff  must  lieep  the  person  in  custody, 
bring  liim  before  tlie  court  or  judge,  and  detain 
him  until  an  order  be  made  in  the  premises,  un- 
less the  person  arrested  entitle  himself  to  be  dis- 
charged, as  provided  in  the  next  section. 

§  1215.  When  a  direction  to  let  the  person  ar- 
rested to  bail  is  contained  in  the  w^arrant  of  at- 
tachment, or  indorsed  thereon,  he  must  be  dis- 
charged from  the  arrest  upon  executing  and  deliv- 
ering to  the  officer,  at  any  time  before  the  return 
day  of  the  warrant,  a  written  undertal^ing,  with 
two  suflScient  sureties,  to  the  effect  that  the  per- 
son arrested  will  appear  on  the  return  of  the  war- 
rant and  abide  the  order  of  the  court  or  judge 


§§  1216-1220  CONTEMPTS.  484 

thereupon;  or  they  will  pay,  as  may  be  directed, 
the  sum  specified  in  the  warrant. 

§  1216.  The  oflicer  must  return  the  warrant  of 
arrest  and  undertaking,  if  any,  received  by  him 
from  the  person  arrested,  by  the  return  day  speci- 
fied therein. 

§  1217.  When  the  person  arrested  has  been 
brought  up  or  appeared,  the  court  or  judge  must 
proceed  to  investigate  the  charge  and  must  hear 
any  answer  which  the  person  arrested  may  make 
to  the  same,  and  may  examine  witnesses  for  or 
against  him,  for  which  an  adjournment  may  be 
had  from  time  to  time,  if  necessary. 

§  1218.  Upon  the  answer  and  evidence  taken 
the  court  or  judge  must  determine  whether  the 
person  proceeded  against  is  guilty  of  the  con- 
tempt charged,  and  if  it  be  adjudged  that  he  is 
guilty  of  the  contempt,  a  fine  may  be  imposed  on 
him  not  exceeding  five  hundred  dollars,  or  he  may 
be  imprisoned  not  exceeding  five  days,  or  both. 

§  1219,  When  the  contempt  consists  in  the 
omission  to  perform  an  act  which  is  yet  in  the 
power  of  the  person  to  perform,  he  may  be  im- 
prisoned until  he  have  performed  it.  and  in  that 
case  the  act  must  be  specified  in  the  warrant  of 
commitment. 

Executor  or  administrator,  contempt:    Sec.  1440. 

§  1220.  When  the  warrant  of  arrest  has  been 
returned  served,  if  the  person  arrested  do  not  ap- 
pear on  the  return  day,  the  court  or  judge  may 
issue  another  warrant  of  arrest,  or  may  order  the 
undertaking  to  be  prosecuted  or  both.  If  the 
undertaking  be  prosecuted,  the  measure  of  dam- 
ages in  the  action  is  the  extent  of  the  loss  or  in- 


485  VOLUNTARY  DISSOLUTION.         §§  1221,  1227 

jury  sustained  by  the  aggrieved  party,  by  reason 
of  the  misconduct  for  which  the  warrant  was  is- 
sued, and  the  costs  of  the  proceeding. 

§  1221.  Whenever,  by  the  provisions  of  this 
title,  an  othcer  is  required  to  keep  a  person  arrest- 
ed on  a  warrant  of  attachment  in  custody,  and  to 
bring  him  before  a  court  or  judge,  the  inability, 
from  illness  or  otherwise,  of  the  person  to  attend 
is  sufficient  excuse  for  not  bringing  him  up;  and 
the  officer  must  not  confine  a  person  arrested  upon 
the  warrant  in  a  prison,  or  otherwise  restrain  him 
of  personal  liberty,  except  so  far  as  may  be  neces- 
sary to  secure  his  personal  attendance. 

§  1222.  The  judgment  and  orders  of  the  court 
or  judge,  made  in  cases  of  contempt,  are  final 
and  conclusive. 


TITLE  VI. 

OF    THE      VOLUNTARY    DISSOLUTION      OF    CORPORA- 
TIONS. 

§  1227.  How  dissolved. 

§  1228.  Application,  what  to  contain. 

§  1229.  Application,  how  signed  and  verified. 

§  1230.  Filing    application    and    publication    of    notice. 

§  1231.  Objections  may  be  filed. 

§  1232.  Hearing  of  application. 

§  1233.  Judgment  roll  and  appeals. 

§  1227.  A  corporation  may  be  dissolved  by  the 
Superior  Court  of  the  county  where  its  principal 
place  of  business  is  situated,  upon  its  voluntary 
application  for  that  purpose.  [Amendment  ap- 
proved March  16,  1880;  Amendments  1880,  109.  In 
effect  April  16,  1880.] 

Stats.  1850,  p.  350.  sec.  31. 

Voluntary  dissolution,  receiver:   Sec.  565. 

Involuntary  dissolution:   Sec.  802  et  seq. 


§§  1228-1232         VOLUNTARY    DISSOLUTION.  486 

§  1228.  The  application  must  be  iii  writing, 
and  must  set  fortli: 

1.  That  at  a  meeting  of  the  stocliholders  or 
members  called  for  that  purpose,  the  dissolution 
of  the  corporation  was  resolved  upon  by  a  two- 
third  vote  of  all  the  stockholders  or  members; 

2.  That  all  claims  and  demands  against  the 
corporation  have  been  satisfied  and  discharged. 

§  1229.  The  application  must  be  signed  by  a 
majority  of  the  board  of  trustees,  directors,  or 
other  officers  having  the  management  of  the  af- 
fairs of  the  corporation,  and  must  be  verified  in 
the  same  manner  as  a  complaint  in  a  civil  action. 

Verification:    Sec.  446. 

§  1230.  If  the  court  is  satisfied  that  the  appli- 
cation is  in  conformity  with  this  title,  the  judge 
thereof  must  order  it  to  be  filed  with  the  clerk, 
and  that  the  clerk  give  not  less  than  thirty  nor 
more  than  fifty  days'  notice  of  the  application,  by 
publication  in  some  newspaper  published  in  the 
county;  and  if  there  are  none  such,  then  by  ad- 
vertisements posted  up  in  three  of  the  principal 
public  places  in  the  county.  [Amendment  ap- 
proved April  1(5,  1880;  Amendments  1880,  109.  In 
effect  April  16,  1880.] 

§  1231.  At  any  time  before  the  expiration  of 
the  time  of  publication,  any  person  may  file  his 
objections  to  the  application. 

§  1232.  After  the  time  of  publication  has  ex- 
pired, the  court  may,  upon  five  days'  notice  to 
the  persons  who  have  filed  objections  or  without 
further  notice,  if  no  objections  have  been  filed, 
proceed  to  hear  and  determine  the  application, 
and  if  all  the  statements  therein  made  are  shown 
to  be  true,  must  declare  the  corporation  dissolved. 


487  VOLUNTARY   DISSOLUTION.         §§  1233,  1234 

LAmendment  approved  February  25,  1878;  Amend- 
ments 1877-8,  108.    In  effect  February  25,  1878.] 
Notices,  service,  etc:    Sec.  1010  et  seq. 

§  1233.  The  application,  notices,  and  proof  of 
publication,  objections  (if  there  be  any)  and  de- 
claration of  dissolution,  constitute  the  judgment 
roll;  and  from  the  judgment  an  appeal  may  be 
taken,  as  from  other  judgments  of  the  Superior 
Courts.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  109.  In  effect  April  16,  1880.] 
Appeals  to  Supreme  Court:   Sees.  963-966. 

§  1234.  If  the  applicant  be  a  savings  and  loan 
association,  or  engaged  in  the  business  of  receiv- 
ing money  on  deposit,  and  there  be  any  unclaimed 
deposit  or  dividend  in  its  hands  belonging  to  a 
person  whose  whereabouts  are  unl^nown  to  the 
trustees,  directors,  or  other  officers  presenting  the 
application,  the  application  shall  set  forth  the 
name  of  the  person  making  such  deposit  or  enti- 
tled to  such  dividend,  the  time  when  such  deposit 
was  made  or  dividend  declared,  the  residence,  if 
known,  of  such  person  at  the  time  of  such  deposit, 
the  amount  of  such  deposit  or  dividend,  and  the 
fact  that  the  whereabouts  of  such  person  are 
known.  The  same  facts  shall  be  stated  in  the  no- 
tice of  the  application  given  by  the  clerk.  If,  at 
any  time  beforetthe  expiration  of  the  time  of  pub- 
lication, any  person  shall  file  a  claim  to  such  de- 
posit or  dividend,  the  court  shall,  at  the  hearing 
and  upon  five  days'  notice  to  him,  hear  and  deter- 
mine his  claim,  and,  if  such  claim  be  established, 
order  such  money  to  be  paid  to  him.  All  such  de- 
posits or  dividends  not  so  claimed,  or  as  to  which 
no  claim  shall  be  established,  shall,  upon  order  of 
the  court,  be  paid  into  the  state  treasury,  accom- 
panied with  a  copy  of  the  order,  which  shall  set 


§  1234  VOLUNTARY   DISSOLUTION.  488 

forth  the  facts  hereinbefore  required  to  be  stated 
concerning  such  deposits  or  dividends;  and,  upon 
production  of  the  Treasurer's  receipt  for  such  pay- 
ment, the  court  may  proceed  to  declare  the  corpo- 
ration dissolved  as  in  other  cases.  All  unclaimed 
deposits  and  dividends  so  paid  into  the  state  treas- 
ury shall  be  received,  invested,  accounted  for,  and 
paid  out,  in  the  same  manner  and  by  the  same 
officers  as  is  provided  by  law  in  the  case  of  es- 
cheated estates  and  in  section  twelve  hundred  and 
seventy-two  of  this  Code.  [New  section  approved 
Febi-uary  25.  1S97:  Stats.  1897,  c.  35.] 


489  EMINENT    DOMAIN.  §  1237 

TITLE  VII. 

OF   EMINENT   DOMAIN. 

§  1237.    Eminent  domain  defined. 
§  1238.    Purposes  for  which  it  may  be  exercised. 
§  1239.    What  estates  in  land  may  be  acquired  by  condem- 
nation. 
§  1240.    Private  property  defined.    Classes  enumerated. 
§  1241,    Facts  necessary  to  be  found  before  condemnation. 
§  1242.    Parties   may  make    location.       May   enter   to   make 

surveys. 
§  1243.    Jurisdiction  in  District  Court. 
§  1244.     The  complaint  and  its  contents. 
§  1245.     Summons,     what     to     contain.       How     issued     and 

served. 
§  1246.    Who  may  defend.    What  the  answer  may  show,  and 

how  verified. 
§  1247.     Court  shall  have  jurisdiction  to  regulate  the  mode 

of    making    crossings    or    of    enjoying    a    common 

use. 
§  1248.     Court  or  jury  to  assess  damages. 
§  1249.    The  date  with  respect  to  which  compensation  shall 

be  assessed,  and  the  measure  thereof. 
§  1250.    New  proceedings  to  cure  defective  title. 
§  1251.    Payment  of  damages. 
§  1252.     Damages,  to  whom  paid. 
§  1253.    Final  order  of  condemnation,  what  to  contain.  When 

filed,  title  vests. 
§  1254.    Putting  plaintiff  in  possession. 
§  1255.    Costs  may  be  allowed,   distribution  thereof. 
§  1256.     Rules  of  practice. 
§  1257.    New  trials  and  appeals. 

§  1258.    When  title  takes  effect,   and  construction  of. 
§  1259.    When  title  takes  effect. 
§  1260.     Construction. 

§  1261.    Pending  proceedings  not  affected. 
§  1262.    Rules  of  practice. 
§  1263.     Exceptions. 

§  1237.  Eminent  domain  is  the  right  of  the 
people  or  government  to  talie  private  property  for 
public  use.  This  right  may  be  exercised  in  the 
manner  provided  in  this  title. 

Const ihifional  provisions:  See  Const.  Cal.,  art. 
1.  see.  H;  art.  12,  sec.  8:  art.  15,  sec.  1. 


§  1238  EMINENT   DOMAIN.  490 

§  1238.  Subject  to  the  provisions  of  this  title, 
the  right  or!  eminent  domain  may  be  exercised  in 
behalf  of  the  following  public  uses: 

1.  Fortifications,  magazines,  arsenals,  navy 
yards,  navy  and  army  stations,  lighthouses,  range 
and  beacon  lights,  coast  surveys,  and  all  other 
public  uses  authorized  by  the  government  of  the 
United  States. 

2.  Public  buildings  and  grounds  for  the  use  of 
the  State,  and  all  other  public  uses  authorized  by 
the  Legislature  of  this  State. 

3.  Public  buildings  and  grounds  for  the  use  of 
any  county,  incorporated  city,  or  city  and  county, 
village, town,  or  school  districts;  canals, aqueducts, 
reservoirs,  tunnels,  flumes,  ditches,  or  pipes  for  con- 
ducting or  storing  water  for  the  use  of  the  inhab- 
itants of  any  county,  incorporated  city,  or  city 
and  county,  village,  or  town,  or  for  draining  any 
county,  incorporated  city,  or  city  and  county,  vil- 
lage, or  tow^n;  raising  the  banlis  of  streams,  re- 
moving obstructions  therefrom,  and  widening  and 
deepening  or  straightening  their  channels,  roads, 
streets,  and  alleys,  and  all  other  public  uses  for 
the  benefit  of  any  county,  incorporated  city,  or 
city  and  county,  village,  or  town,  or  the  inhabi- 
tants thereof,  wiiich  may  be  authorized  by  the 
Legislature;  but  the  mode  of  apportioning  and  col- 
lecting the  costs  of  such  improvements  shall  be 
such  as  may  be  provided  in  the  statutes  by  which 
the  same  may  be  authorized. 

4.  Wharves,  docks,  piers,  chutes,  booms,  fer- 
ries, bridges,  toll-roads,  by-roads,  planlv  and  turn- 
pike roads;  paths  and  roads  either  on  the  surface, 
elevated,  or  depressed,  for  the  use  of  bicycles, 
tricycles,  motor-cycles,  and  other  horseless  vehi- 
cles; steam,  electric,  and  horse  railroads,  canals, 
ditches,  dams,  pondings,  flumes,  aqueducts,  and 
pipes  for  irrigation,  public  transportation,  supply- 


491  EMINENT   DOMAIN.  §  1238 

ing  mines  and  farming  neighborhoods  with  water, 
and  draining  and  reclaiming  lands,  and  for  float- 
ing logs  and  lumber  on  streams  not  navigable. 

5.  Roads,  tunnels,  ditches,  flumes,  pipes,  and 
dumping  places  for  working  mines;  also  outlets, 
natural  or  otherwise,  for  the  flow,  deposit,  or  con- 
duct of  tailings  or  refuse  matter  from  mines;  also 
an  occupancy  in  common  by  the  owners  or  pos- 
sessors of  different  mines  of  any  place  for  the 
flow,  deposit,  or  conduct  of  tailings  or  refuse  mat- 
ter from  their  several  mines. 

6.  By-roads  leading  from  highways  to  resi- 
dences, farms,  mines,  mills,  factories,  and  build- 
ings for  operating  machinery,  or  necessary  to 
reach  any  property  used  for  public  purposes. 

7.  Telegraph  lines. 

8.  Sewerage  of  any  incorporated  city,  or  city 
and  county,  or  of  any  village,  or  town,  whether  in- 
corporated or  unincorporated,  or  of  any  settlement 
consisting  of  not  less  than  ten  families,  or  of  any 
public  buildings  belonging  to  the  State,  or  to 
any  college  or  university. 

9.  Roads  for  transportation  by  traction  engines 
or  road  locomotives. 

10.  Oil  pipe-lines. 

11.  Roads  for  logging  or  lumbering  purposes. 

12.  Canals,  reservoirs,  dams,  ditches,  flumes, 
aqueducts,  and  pipes,  for  supplying  and  storing 
water  for  the  operation  of  machinery  for  the  pur- 
pose of  generating  and  transmitting  electricity  for 
the  supplying  of  mines,  quarries,  railroads,  tram- 
ways, mills,  and  factories  with  electrical  power, 
and  also  for  the  supplying  electricity  to  light  or 
heat  mines,  quarries,  mills,  factories,  incorporat- 
ed cities,  cities  and  counties,  villages,  or  towns, 
together  with  lands,  buildings,  and  all  other  im- 
provements in  or  upon  which  to  erect,  install, 
place,  use,  or  operate  machinery  for  the  purpose 


§§  1239,  1240  EMINENT    DOMAIN.  492 

of  j,'enerating  and  transmitting  electricity  for  any 
of  the  purposes  or  uses  above  set  forth. 

13.  Electric  light  lines.  [Amendment  approved 
March  4,  1897:  Stats.  1897,  c.  77.  In  effect  imme- 
diately.] 

This  section  was  also  amended  in  1891:  Stats. 
1891,  p.  48;  and  in  1893:  Stats.  1893,  p.  146;  and 
in  1895:  Stats.  1895,  p.  89. 

Eminent  domain  generally:  See  Civ.  Code,  sec. 
1001. 

§  1239.  The  following  is  a  classification  of  the 
estates  and  rights  in  lands  subject  to  be  taken  for 
public  use: 

1.  A  fee  simple,  when  taken  for  public  build- 
ings or  grounds,  or  for  permanent  buildings,  for 
reservoirs  and  dams,  and  permanent  flooding  oc- 
casioned thereby,  or  for  an  outlet  for  a  flow,  or  a 
place  for  the  deposit  of  debris  or  tailings  of  a 
mine; 

2.  An  easement,  when  taken  for  any  other  use; 

3.  The  right  of  entry  upon  and  occupation  of 
lands,  and  the  right  to  take  therefrom  such  earth, 
gravel,  stones,  trees,  and  timber  as  may  be  neces- 
sary for  some  public  use.  [Amendment  approved 
March  24,  1874:  Amendments  1873-4,  p.  355.  In  ef- 
fect .July  1,  1874.] 

§  1240.  The  private  property  which  may  be 
taken  under  this  title,  includes: 

1.  All  real  property  belonging  to  any  person; 

2.  Lands  belonging  to  this  State,  or  to  any 
county,  incorporated  city,  or  city  and  county,  vil- 
lage, or  town,  not  appropriated  to  some  public 
use; 

3.  Property  appropriated  to  public  use;  but 
such  property  shall  not  be  taken  unless  for  a  more 
necessary  public  use  than  that  to  which  it  has 
been  already  appropriated; 


493  EMINENT    DOMAIN.  §§  1241,  1242 

4.  Franchises  for  toll  roads,  toll  bridges,  and 
ferries,  and  all  other  franchises;  but  such  fran- 
chises shall  not  be  talcen  unless  for  free  highways, 
railroads,  or  other  more  necessary  public  use; 

5.  All  rights  of  way  for  any  and  all  the  purposes 
mentioned  in  section  twelve  hundred  and  thirty- 
eight,  and  any  and  all  structures  and  improve- 
ments thereon,  and  the  lauds  held  or  used  in  con- 
nection therewith  shall  be  subject  to  be  connected 
with,  crossed,  or  intersected  by  any  other  right  of 
way  or  improvements,  or  structures  thereon.  They 
shall  also  be  subject  to  a  limited  use,  in  common 
with  the  owner  thereof,  when  necessary;  but  such 
uses,  crossings,  intersections,  and  connections 
shall  be  made  in  manner  most  compatible  with 
the  greatest  public  benefit  and  least  private  in- 
jury; 

6.  All  classes  of  private  property  not  enumer- 
ated may  be  taken  for  public  use,  when  such  tak- 
ing is  authorized  by  law. 

More  necessary  public  use:  See  sec.  1241,  subd.  3. 
Crossings:  See  sec.  1247,  subd.  1. 

§  1241.  Before  property  can  be  taken,  it  must 
appear: 

1.  That  the  use  to  which  it  is  to  be  applied  is 
a  use  authorized  by  law; 

2.  That  the  taking  is  necessary  to  such  use; 

3.  If  already  appropriated  to  some  public  use, 
that  the  public  use  to  which  it  is  to  be  applied  is 
a  more  necessary  public  use. 

§  1242.  In  all  cases  where  land  is  required  for 
public  use,  the  State,  or  its  agents  in  charge  of 
such  use,  may  survey  and  locate  the  same;  but 
it  must  be  located  in  the  manner  which  will  be 
most  compatible  with  the  greatest  public  good  and 
the  least  private  injury,  and  subject  to  the  provi- 
Code  Civ.  Proc— 42. 


§§  1243,  1244  EMINENT     DOMAIN.  "     494 

sious  of  section  twelve  hundred  and  forty-seven. 
The  State,  or  its  agents  in  charge  of  such  public 
use,  may  enter  upon  the  land  and  malie  examina- 
tion, surveys  and  maps  thereof,  and  such  entry 
shall  constitute  no  cause  of  action  in  favor  of  the 
owners  of  the  land,  except  for  injuries  resulting 
from  negligence,  wantonness,  or  malice. 
State  or  its  agents:  Civ.  Code,  sec.  1001. 

§  1243.  All  proceedings  under  this  title  must 
be  brought  in  the  Superior  Court  of  the  county 
in  which  the  property  is  situated.  They  must  be 
commenced  by  filing  a  complaint  and  issuing  a 
summons  thereon.  [Amendment  approved  April 
26,  1880;  Amendments  1880,  p.  118.  In  effect 
April  26,  1880.] 

Complaint:  Sec.  1244;  generally,  sec.  426. 

Summons:  Sec.  1245;  generally,  sec.  406  et  seq. 

§   1244.    The  complaint  must  contain: 

1.  The  name  of  the  corporation,  association, 
commission,  or  person  in  charge  of  the  public  use 
for  which  the  property  is  sought,  who  must  be 
styled  plaintiff; 

2.  The  names  of  all  owners  and  claimants  of 
the  property,  if  Ivuown,  or  a  statement  that  they 
are  unknown,  who  must  be  styled  defendants; 

3.  A  statement  of  the  right  of  the  plaintiff; 

4.  If  a  right  of  way  be  sought,  the  complaint 
must  show  the  location,  general  route,  and  ter- 
mini, and  must  be  accompanied  with  a  map  there- 
of, so  far  ns  the  same  is  involved  in  the  action  or 
proceeding: 

5.  A  descrii)tion  of  each  piece  of  land  sought  to 
be  taken,  and  whether  the  same  includes  the 
whole  or  only  a  part  of  an  entire  parcel  or  tract. 
All  parcels  lying  in  the  county,  and  required  for 
the  same  public  use,  may  be  included  in  the  same 


495  EMINENT   DOMAIN.  §§1245-1247 

or  separate  proceedings,  at  the  option  of  the  plain- 
tiff, but  the  court  may  consolidate  or  separate 
them  to  suit  the  convenience  of  parties. 

When  application  for  the  condemnation  of  a 
right  of  way  for  the  purposes  of  sewerage  is  made 
on  behalf  of  a  settlement,  or  of  an  incorporated 
village  or  town,  the  board  of  supervisors  of  the- 
county  may  be  named  as  plaintiff,  [Amendment 
approved  April  20,  1880;  Amendments  1880,  p, 
118.    In  effect  April  2(3,  1880.] 

§  1245.  The  clerk  must  issue  a  summons, 
which  must  contain  the  names  of  the  parties,  a 
general  description  of  the  whole  property,  a  state- 
ment of  the  public  use  for  which  it  is  sought,  and 
a  reference  to  the  complaint  for  descriptions  of 
the  respective  parcels,  and  a  notice  to  the  defend- 
ants to  appear  and  show  cause  why  the  property 
described  should  not  be  condemned  as  prayed  for 
in  the  complaint.  In  all  other  particulars  it  must 
be  in  the  form  of  a  summons  in  civil  actions,  and 
must  be  served  in  lilie  manner. 

Summons  generally,  contents:  Sec,  407  et  seq,; 
service:  Sec.  410  et  seq. 

§  1246,  All  persons  in  occupation  of,  or  having 
or  claiming  an  interest  in,  any  of  the  property  de- 
scribed in  the  complaint,  or  in  the  damages  for  the 
taking  thereof,  though  not  named,  may  appear, 
plead,  and  defend,  each  in  respect  to  his  own 
property  or  interest,  or  that  claimed  by  him,  in 
like  manner  as  if  named  in  the  complaint. 

Appearance,  generally:  Sec,  1014, 

Answer,  counter-claim,  and  cross-complaint: 
Sees.  437-442, 

§   1247.    The  court  shall  have  power: 

1.    To   regulate   and   determine  the    place    and 


§  1248  EMINENT   DOMAIN.  496 

maDner  of  making  connections  and  crossings,  or 
of  enjoying  the  common  use  mentioned  in  the 
fifth  subdivision  of  section  twelve  hundred  and 
forty; 

2.  To  hear  and  determine  all  adverse  or  conflict- 
ing claims  to  the  property  sought  to  be  con- 
demned, and  to  the  damages  therefor; 

3.  To  determine  the  respective  rights  of  differ- 
ent parties  seeliing  condemnation  of  the  same 
property. 

§  1248.  The  court,  jury,  or  referee  must  hear 
such  legal  testimony  as  may  be  offered  by  any  of 
the  parties  to  the  proceedings,  and  thereupon  must 
ascertain  and  assess: 

1.  The  value  of  the  property  sought  to  be 
condemned,  and  all  improvements  thereon  per- 
taining to  the  realty,  and  of  each  and  every  sep- 
arate estate  or  interest  therein;  if  it  consists  of 
different  parcels,  the  value  of  each  parcel  and 
each  estate  or  interest  therein  shall  be  separately 
assessed; 

2.  If  the  property  sought  to  be  condemned  con- 
stitutes only  a  part  of  a  larger  parcel,  the  dam- 
ages which  will  accrue  to  the  portion  not  sought 
to  be  condemned,  by  reason  of  its  severance  from 
the  portion  sought  to  be  condemned,  and  the  con- 
struction of  the  improvement  in  the  manner  pro-, 
posed  by  the  plaintiff; 

3.  Separately,  how  much  the  portion  not  sought 
to  be  condemned,  and  eacli  estate  or  interest 
therein,  will  be  benefited,  if  at  all,  by  the  con- 
struction of  the  improvement  proposed  by  the 
plaintiff;  and  if  the  benefit  shall  be  equal  to  the 
damages  assessed  under  subdivision  two,  the  own- 
er of  the  parcel  shall  be  allowed  no  compensation 
except  the  value  of  the  portion  talcen;  but  if  the 
benefit  sliall  be  less  than  the  damages,  so  assess- 


497  EMINENT   DOMAIN.  §  12  J9 

ed,  the  former  shall  be  deducted  from  the  latter, 
and  the  remainder  shall  be  the  ouly  damages  al- 
lowed iu  addition  to  the  value; 

4.  If  the  property  sought  to  be  condemned  be 
water  or  the  use  of  water,  belonging  to  riparian 
owners,  or  appurtenant  to  any  lands,  how  much 
the  lands  of  the  riparian  owner,  or  the  lands  to 
which  the  property  sought  to  be  condemned  is  ap- 
purtenant, Avill  be  benefited,  if  at  all,  by  a  diver- 
sion of  water  from  its  natural  course,  by  the  con- 
struction and  maintenance,  by  the  person  or  cor- 
poration in  whose  favor  the  right  of  eminent  do- 
main is  exercised,  of  worlvs  for  the  distribution 
and  convenient  delivery  of  water  upon  said  lands; 
and  such  benefit,  if  any,  shall  be  deducted  from 
any  damages  awarded  the  owner  of  such  prop- 
erty; 

5.  If  the  property  sought  to  be  condemned  be 
for  a  railroad,  the  cost  of  good  and  sufficient 
fences  along  the  line  of  such  railroad,  and  the 
cost  of  cattle  guards  where  fences  may  cross  the 
line  of  such  railroad; 

6.  As  far  as  practicable,  compensation  must  be 
assessed  for  each  source  of  damages  separately. 
[Amendment  approved  March  19,  1889;  Stats. 
1889,  p.  343.    In  effect  March  19,  1889.] 

Judgment  of  condemnation:  See  sec.  1253. 
Pi-actice,  etc:  Sees.  1250,  1257. 
Conflict  of  plaintiffs:  See  sec.  1240. 
Jury:  See  sec.  12.50,  infra. 
Value,  etc:  Sec.  1249. 

§  1249.  For  the  purpose  of  assessing  compen- 
sation and  damages,  the  right  thereto  shall  be 
deemed  to  have  accrued  at  the  date  of  the  sum- 
mons, and  its  actual  value,  at  that  date,  shall  be 
the  measure  of  compensation  for  all  property  to 
be  actually  taken,  and  the  basis  of  damages  to 


§§  1250-1252  EMINENT    DOMAIN.  498 

property  not  actually  taken  but  injuriously  affect- 
ed, in  all  cases  where  such  damages  are  allowed 
as  provided  in  section  twelve  hundred  and  forty- 
eight.  If  an  order  be  made  letting  the  plaintiff 
into  possession,  as  provided  in  section  twelve  hun- 
dred and  fifty-four,  the  compensation  and  dam- 
ages awarded  shall  draw  lawful  interest  from 
the  date  of  such  order.  No  improvements  put 
upon  the  property,  subsequent  to  the  date  of  the 
service  of  summons  shall  be  included  in  the  as- 
sessment of  compensation  or  damages. 

§  1250.  If  the  title  attempted  to  be  acquired  is 
found  to  be  defective  from  any  cause,  the  plain- 
tiff may  again  institute  proceedings  to  acquire 
the  same,  as  in  this  title  prescribed. 

§  1251.  The  plaintiff  must,  within  thirty  days 
after  final  judgment,  pay  the  sum  of  money  as- 
sessed; but  may,  at  the  time  of  or  before  pay- 
ment, elect  to  build  the  fences  and  cattle  guards, 
and  if  he  so  elect,  shall  execute  to  the  defendant 
a  bond,  with  sureties  to  be  approved  by  the  court 
in  double  the  assessed  cost  of  the  same,  to  build 
such  fences  and  cattle  guards  within  eighteen 
months  from  the  time  the  railroad  is  built  on  the 
land  talcen,  and  if  such  bond  be  given,  need  not 
pay  the  cost  of  such  fences  and  cattle  guards.  In 
an  action  on  such  bond,  the  plaintiff  may  recover 
reasonable  attorney's  fees. 

§  1252.  Payment  may  be  made  to  the  defend- 
ants entitled  thereto,  or  the  money  may  be  depos- 
ited in  court  for  the  defendants,  and  be  distribut- 
ed to  those  entitled  thereto.  If  the  money  be  not  J 
so  paid  or  deposited,  the  defendants  may  havej 
execution  as  in  civil  cases,  and  if  the  money  can- 
not be  made  on  execution,  the  court,  upon  a  show 
ing  to  that  effect,  must  set  aside  and  annul  the  en- 1 


499  EMINENT    DOMAIN.  §§  1253,  1254 

tire  proceedings,   and  restore  possession    of    the 
property  to  the  defendant,  if  possession  has  been 
talcen  by  the  plaintiff. 
I'ayment,  when  to  be  made:  Sees,  1251,  1254. 

§  1253.  When  payments  have  been  made,  and 
the  bond  given,  if  the  plaintiff  elects  to  give  one, 
as  required  by  the  last  two  sections,  the  court 
must  malj.e  a  final  order  of  condemnation,  which 
must  describe  the  property  condemned,  and  the 
purposes  of  such  condemnation.  A  copy  of  the 
order  must  be  filed  in  the  oftice  of  the  recorder  of 
the  county,  and  thereupon  the  property  described 
therein  shall  vest  in  the  plaintiff  for  the  purposes 
therein  specified. 

§  1254.  At  any  time  after  the  filing  of  the 
complaint,  and  the  issuance  and  service  of  the 
summons  thereon,  the  court  may,  upon  notice  to 
the  defendant  by  said  court,  by  an  order  in  that 
behalf  made,  authorize  the  plaintiff,  if  already  in 
possession,  to  continue  in  the  possession  and  use, 
and  if  not  in  possession,  to  tali;e  possession  of  and 
use  the  land  and  premises  sought  to  be  con- 
demned, during  the  pendency  and  until  the  final 
conclusion  of  the  proceedings  brought  to  con- 
demn the  same,  and  may  stay  all  actions  and  pro- 
ceedings against  such  plaintiff  on  account  thereof; 
provided,  however,  that  in  and  by  said  order  said 
plaintiff  shall  be  ordered  to  pay,  and  thereafter 
and  before  the  taking  of  such  possession,  or  of  the 
further  continuance  in  possession  of  any  such 
land  and  premises,  pay  a  sufficient  sum  of  money 
Into  court,  or  give  security  for  the  payment  there- 
of, to  be  approved  by  the  judge  of  such  court,  to 
compensate  said  defendant  for  all  damages  which 
may  be  sustained  by  said  defendant  by  reason  of 
such  proceedings,  or  of  any  such  condemnation; 


§  1254  EMINENT    DOMAIN.  500 

provided,  the  eondemnation  shall  be  finally  had 
of  the  said  laud  and  premises,  together  Avith  all 
damages  which  may  be  sustained  by  the  said  de- 
fendant, if  the  said  proceedings  for  said  condem- 
nation shall  finally  fail;  or  if  for  any  cause  the 
said  land  and  premises  shall  not  be  taken  for  the 
public  use  for  which  the  same  is  sought  to  be 
condemned,  and  upon  the  deposit  of  the  said 
money,  or  upon  the  giving  of  such  security,  as 
ordered  by  the  court,  the  said  plaintiff,  by  the 
said  order  of  the  said  court,  shall  be  let  into  the 
possession  and  use  of  said  land  and  premises 
sought  to  be  condemned,  or  be  continued  in  the 
possession  and  use  thereof,  in  tlie  same  manner 
and  to  the  same  effect  as  the  said  plaintiff  would 
be  entitled  after  the  trial  of  such  proceedings  and 
the  entry  of  final  judgment  therein,  except  that 
the  right  of  said  plaintiff*  to  retain  such  possession 
and  to  use  said  land  and  premises  shall  be  deter- 
mined by  said  final  judgment,  and  in  case  of  a 
refusal  of  the  defendant,  upon  the  order  of  said 
court,  to  allow  the  said  plaintiff  to  enter  into  the 
possession  and  use  of  said  land  and  premises,  or 
any  part  thereof,  the  said  court,  upon  application 
of  said  plaintiff,  shall  issue  a  writ  of  assistance 
of  the  same  force  and  effect  as  writs  of  assistance 
are  issued  in  other  cases  in  which  writs  of  assist- 
ance are  issuable,  which  said  writ  shall  be  execut- 
ed by  the  Sheriff  of  the  county  wlierein  the  said 
land  and  premises  may  be  situated,  without  de- 
lay. 

Tlie  defendant  who  is  entitled  to  the  said  money 
paid  into  court  as  aforesaid,  or  upon  any  judg- 
ment in  such  proceedings,  shall  be  entitled  to  de- 
mand and  receive  the  same  at  any  time  thereafter 
upon  obtaining  an  order  therefor  from  the  court. 
It  sliall  be  the  duty  of  the  court,  upon  application 
being  made  by  such  defendant,  to  order  and  di- 


501  EMINENT   DOMAIN.  §  1254 

rect  that  the  money  so  paid  into  court  be  deliv- 
ered to  him  upon  his  filing  a  satisfaction  of  the 
judgment,  or  upon  tiling  his  receipt  therefor,  and 
an  abandonment  of  all  defenses  to  the  action  or 
proceeding,  except  as  to  the  amount  of  damages 
that  he  may  be  entitled  to  in  the  event  that  a  new 
trial  shall  be  granted.  A  payment  to  defendant, 
as  aforesaid,  shall  be  held  to  be  an  abandonment 
by  such  defendant  of  all  defenses  interposed  by 
him,  excepting  his  claim  for  greater  compensa- 
tion. In  ascertaining  the  amount  to  be  paid  into 
court,  the  court  shall  talvo  care  that  the  same  be 
sufficient  and  adequate.  The  payment  of  the 
money  into  court,  as  hereinbefore  provided  for, 
shall  not  discharge  the  plaintiff  from  liability  to 
keep  the  said  fund  full  and  without  diminution; 
but  such  money  shall  be  and  remain,  as  to  all  ac- 
cidents, defalcations,  or  other  contingencies  (as  be- 
tween the  parties  to  the  proceedings),  at  the  risk 
of  the  plaintiff,  and  shall  so  remain  until  the 
amount  of  the  compensation  or  damages  is  finally 
settled  by  judicial  determination,  and  until  the 
court  awards  the  money,  or  such  part  thereof  as 
shall  be  determined  upon,  to  the  defendant,  and 
until  he  is  authorized  or  required  by  order  of  court 
to  take  it.  If,  for  any  reason,  the  money  shall  at 
any  time  be  lost,  or  otherwise  abstracted  or  with- 
drawn, through  no  fault  of  the  defendant,  the 
court  shall  require  the  plaintiff  to  make  and  keep 
the  sum  good  at  all  times  until  the  litigation  is  fi- 
nally brought  to  an  end,  and  until  paid  over  or 
made  payable  to  the  defendant  by  order  of  court, 
as  above  provided,  and  until  such  time  or  times 
the  County  Clerk  shall  be  deemed  to  be  the  cus- 
todian of  the  money,  and  shall  be  liable  to  the 
plaintiff  upon  liis  official  bond  for  the  same,  or 
any  part  thereof,  in  case  it  be  for  any  reason  lost 
or  otherwise  abstracted  or  withdrawn.    The  court. 


§§  1255-1257  EMINENT    DOMAIN.  SOf 

however,  may  order  the  money  to  be  deposited  in 
the  state  treasury,  and  in  such  case  it  shall  be  the 
duty  of  the  State  Treasurer  to  receive  all  such 
moneys,  duly  receipt  for,  and  safely  keep  the  same 
in  a  special  fund,  to  be  entered  upon  his  boolis  as 
a  condemnation  fund  for  such  purpose,  and  for 
such  duty  he  shall  be  liable  to  the  plaintiff  upon 
his  official  bond.  The  State  Treasurer  shall  pay 
out  such  money  so  deposited  in  such  manner  and 
at  such  times  as  the  court  may,  by  order,  direct. 
In  all  cases  where  a  new  trial  has  been  granted 
upon  the  application  of  the  defendant,  and  he  has 
failed  upon  such  trial  to  obtain  greater  compensa- 
tion than  was  allowed  him  upon  the  first  trial,  the 
costs  of  such  new  trial  shall  be  taxed  against  him. 
[Amendment  approved  March  27,  1897;  Stat.  1897, 
c.  127.    In  effect  immediately.] 

Interest:  Sec.  1249.  It  is  payable  from  the  com- 
mencement of  the  thirty  days  mentioned  in  sec- 
tion 1251. 

§  1255.  Costs  may  be  allowed  or  not,  and  if  al- 
lowed, may  be  apportioned  between  the  parties  on 
the  same  or  adverse  sides,  in  the  discretion  of  the 
court. 

§  1256.  Except  as  otherwise  provided  in  this 
title,  the  provisions  of  part  two  of  this  Code  are 
applicable  to  and  constitute  the  rules  of  practice 
in  the  proceedings  mentioned  in  this  title. 

Part  2:  See  ante,  sees.  307  et  seq. 

§  1257.  The  provisions  of  part  tAvo  of  this 
Code,  relative  to  new  trials  and  appeals,  except 
in  so  far  as  they  are  inconsistent  with  the  provi- 
sions of  this  title,  apply  to  the  proceedings  men- 
tioned in  this  title;  provided,  that  upon  the  pay- 
ment of  the  sum  of  mon(\v  assessed,  and  upon  the 


503  EMINENT    DOMAIN.  §§  1258-1260 

execution  of  the  bond  to  build  the  fences  and  cat- 
tle-suards,  as  provided  in  section  twelve  liundreci 
and  fifty-one,  the  plaintiff  shall  be  entitled  to  en- 
ter into,  improve,  and  hold  possession  of  the  prop- 
erty sought  to  be  condemned,  if  not  already  in 
possession,  or  shall  have  been  let  into  the  posses- 
sion and  use  thereof,  as  provided  in  section  twelve 
hundred  and  fifty-four,  and  devote  the  same  to 
the  public  use  in  question;  and  no  motion  for  a 
new  trial  or  appeal  shall,  after  such  payment  and 
filing  of  such  bond  as  aforesaid,  in  any  manner 
retard  the  contemplated  improvement.  Any 
money  which  shall  have  been  deposited,  as  pro- 
vided in  section  twelve  hundred  and  fifty-four, 
may  be  applied  to  the  payment  of  the  money  as- 
sessed, and  the  remainder,  if  any  there  be,  shall 
be  returned  to  the  plaintiff.  [Approved  March  27, 
1897;  Stats.  1897,  c.  127.    In  effect  immediately.] 

§  1258.  AVith  relation  to  the  acts  passed  at  the 
present  session  of  the  Legislature,  this  title  must 
be  construed  in  the  same  manner  as  if  this  Code 
had  been  passed  on  the  last  day  of  this  session, 
and  from  and  after  the  time  this  Code  takes  ef- 
fect, all  laws  of  this  State  in  relation  to  the  xsik- 
ing  of  private  property  for  public  uses  are  abolish- 
ed, and  all  proceedings  had  in  the  exercise  of  the 
powers  of  eminent  domain  must  conform  to  the 
provisions  of  this  title. 

§  1259.  Title  seven  of  part  three  of  the  Code 
of  Civil  Procedure  of  the  State  of  California  (this 
title)  shall  be  in  force  and  effect  from  and  after 
tlie  fourth  day  of  April,  one  thousand  eight  hun- 
dred and  seventy-two. 

Section  added  by  act  of  April  1,  1872;  same  ap- 
I)lies  to  remaining  sections  of  this  title. 

§  1260.    From    and    after    the   time   this   title 


§§  1261,  1269  ESCHEATED    ESTATES.  504 

takes  effect,  it  must  be  construed  in  the  same 
manner  as  it  would  be  were  sections  four  and 
seventeen  of  this  Code  in  force  and  effect. 

§  1261.  No  proceeding  to  enforce  the  right  of 
eminent  domain  commenced  before  this  title  talies 
effect    is  affected  by  the  provisions  of  this  title. 

§  1262.  Until  the  first  day  of  January,  one 
thousand  eight  hundred  and  seventy-three,  at 
twelve  o'clock  noon,  the  provisions  of  sections 
tAvelve  hundred  and  fifty-six  and  twelve  hundred 
and  fifty-seven  of  this  title  are  suspended;  and 
until  then,  except  as  otherwise  provided  in  this  ti- 
tle, the  rules  of  pleading  and  practice  in  civil  ac- 
tions now  in  force  in  this  State  are  applicable  to 
the  proceedings  mentioned  in  this  title,  and  con- 
stitute the  rules  of  pleading  and  practice  therein. 

§  1263.  Nothing  in  this  Code  must  be  con- 
strued to  abrogate  or  repeal  any  statute  providing 
for  the  taking  of  property  In  any  city  or  town  for 
street  purposes. 


TITLE  VIII. 

OF  ESCHEATED  ESTATES. 

§  1269.     Manner  of  commencing  proceedings  relative  to  es- 
cheated  estates. 
§  1270.     Receiver  of  rents  and  profits  may  be  appointed. 
S  1271.     Appearance,  pleadings,  and  trial. 
§  1272.     Proceedings  by  persons  riaiming  escheated  estates. 

§  1269.  When  tlie  attorney  generiil  is  inforuKMl 
tliat  any  real  estate  has  escheated  to  this  State, 
lie  must  file  an  information  in  behalf  of  the  State 
in  the  Superior  Court  of  the  county  in  which  such 
estate,  or  any  part  thereof,  is  situated,  setting 
forth  a  description  of  the  estate,  the  name  of  the 


505  ESCHEATED    ESTATES.  §§  1270,  1271 

person  JaBt  seized,  the  uame  of  the  occupant  and 
person  claiming  such  estate,  if  known,  and  the 
facts  and  circumstances  in  consequence  of  which 
the  estate  is  claimed  to  have  escheated,  with  an 
allegation  that,  by  reason  thereof,  the  State  of 
California  has  right  by  law  to  such  estate.  Upon 
such  information,  a  summons  must  issue  to  such 
person,  requiring  him  to  appear  and  answer  the 
information  within  the  time  allowed  by  law  in 
civil  actions;  and  the  court  must  make  an  order 
setting  forth  briefly  the  contents  of  the  informa- 
tion, and  requiring  all  persons  interested  in  the 
estate  to  appear  and  show  cause,  if  any  they 
have,  within  forty  days  from  the  date  of  the  or- 
der, why  the  same  should  not  vest  in  this  State; 
which  order  must  be  published  for  at  least  one 
month  from  the  date  thereof,  in  a  newspaper  pub- 
lished in  the  county,  if  one  be  published  therein, 
and  in  case  no  newspaper  is  published  in  the 
county,  in  some  other  newspaper  in  this  State. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  p.  110.    In  effect  April  16,  1880.] 

Unclaimed  realty  of  nonresident  aliens  escheats 
to  State:  Civ.  Code,  sec.  672. 

§  1270.  The  court,  upon  the  information  being 
filed,  and  upon  the  application  of  the  attorney- 
general,  either  before  or  after  answer,  upon  notice 
to  the  party  claiming  such  estate  if  known,  may, 
upon  sufficient  cause  therefor  being  shown,  ap- 
point a  receiver  to  take  charge  and  receive  the 
rents  and  profits  of  the  same  until  the  title  to 
such  real  estate  is  finally  settled. 

Appoint  a  receiver:  See  generally,  sees.  564-569. 

§  1271.    All  persons  named  in  the  information 
may  appear  and  answer,  and  may  traverse  or  deny 
the  facts  stated  in  the  information,  the  title  of  the 
Code   Civ.   Proc— 43. 


§  1271  ESCHEATED    ESTATES.  506 

State  to  lands  and  tenements  therein  mentioned, 
at  any  time  before  the  time  for  answering  ex- 
pires, and  any  other  person  claiming  an  interest 
in  such  estate  may  appear  and  be  made  a  defend- 
ant, and  by  motion  for  that  purpose  in  open  court 
within  the  time  allowed  for  answering;  and  if  no 
person  appears  and  answers  within  the  time,  then 
judgment  must  be  rendered,  that  the  State  be 
seized  of  the  lands  and  tenements  in  such  infor- 
mation claimed.  But  if  any  person  appear  and 
deny  the  title  set  up  by  the  State,  or  traverse  any 
material  fact  set  forth  in  the  information,  the  is- 
sue of  fact  must  be  tried  as  issues  of  facts  are 
tried  in  civil  actions.  If,  after  the  issues  are  tried, 
it  appears  from  the  facts  found  or  admitted  that 
the  State  has  good  title  to  the  land  and  tenements 
in  the  information  mentioned,  or  any  part  thereof, 
judgment  must  be  rendered  that  the  State  be  seiz- 
ed thereof,  and  recover  costs  of  suit  against  the 
defendants.  In  any  judgment  rendered,  or  that 
has  heietofore  been  rendered  by  any  court  of 
competent  jurisdiction,  escheating  real  property 
to  the  State,  on  motion  of  the  attorney-general, 
the  court  shall  make  an  order  that  said  real  prop- 
erty be  sold  by  the  sheriff  of  the  county  where 
the  same  is  situate,  at  public  sale,  for  gold  coin, 
after  giving  such  notice  of  the  time  and  place 
of  sale  as  may  be  prescribed  by  the  court  in 
the  said  order;  that  the  sheriff  shall,  within 
five  days  after  such  sale,  make  a  report 
thereof  to  the  court,  and  upon  the  hearing  of 
said  report,  the  court  may  examine  the  said 
report  and  witnesses  in  relation  to  the  same, 
and  if  the  proceedings  were  unfair,  or  the  sum 
bid  disproportionate  to  the  value,  and  if  it  appear 
that  a  sum  exceeding  such  bid  at  least  ten  per 
cent,  exclusive  of  the  expense  of  a  new  sale,  may 
be  obtained,  the  court  may  vacate  the  sale,  and 


507  ESCHEATED    ESTATES.  §  1272 

direct  another  sale  to  be  had,  of  which  notice 
must  be  given,  and  the  sale  in  all  respects  con- 
ducted as  if  no  previous  sale  had  taken  place.  If 
an  offer  of  ten  per  cent  more  in  amount  than  that 
named  in  the  report  be  made  to  the  court  in  writ- 
ing-, by  a  responsible  person,  the  court  may,  in 
its  discretion,  accept  such  offer,  and  confirm  the 
sale  to  such  person,  or  order  a  new  sale.  If  it  ap- 
pears to  the  court  that  the  sale  was  legally  made, 
and  fairly  conducted,  and  that  the  sum  bid  is  not 
disproportionate  to  the  value  of  the  property  sold, 
and  that  a  greater  sum  than  ten  per  cent,  exclu- 
sive of  the  expense  of  a  new  sale,  cannot  be  ob- 
tained, or  if  the  increased  bid  above  mentioned  be 
made  and  accepted  by  the  court,  the  court  must 
make  an  order  confirming  the  sale,  and  directing 
the  sheriff,  in  the  name  of  the  State,  to  execute 
to  purchaser  or  purchasers  a  conveyance  of  said 
property  sold;  and  said  conveyance  shall  vest  in 
the  purchaser  or  purchasers  all  the  right  and  title 
of  the  State  therein,  and  the  sheriff  shall,  out  of 
the  proceeds  of  such  sale,  pay  the  cost  of  said  pro- 
ceedings incurred  on  behalf  of  the  State,  including 
the  expenses  of  malving  such  sale,  and  also  an 
attorney's  fee,  if  additional  counsel  was  employ- 
ed in  said  proceedings,  to  be  fixed  by  the  court, 
not  exceeding  ten  per  cent  on  the  amount  of  such 
sale,  and  the  residue  thereof  shall  be  paid  by  said 
sheriff  into  the  State  treasury.  [Amendment  ap- 
proved March  2,  1881;  Stats.  1881,  p.  11.  In  effect 
March  2,  1881.] 

Proceedings,  appearance:  Sec.  1014;  answer: 
Sec.  437;  judgment:  Sees.  585,  6G4;  trial:  Sees.  600- 
645;  issue  of  fact:  Sees.  590,  592;  costs:  Sees.  1021 
et  seq. 

§  1272.  Within  twenty  years  after  judgment  in 
any  proceeding  had  under  this  title,  a  person  not 


5  1272  ESCHEATED    ESTATES.  508 

a  party  or  privy  to  such  proceeding  may  file  a 
petition  in  tlie  Superior  Court  of  the  County  of 
Sacramento,  showing  his  claim  or  right  to  the 
property,  or  the  proceeds  thereof.  A  copy  of  such 
petition  must  be  served  on  tlie  attorney  general 
at  least  twenty  days  before  the  hearing  of  the 
petition,  who  must  answer  the  same;  and  the 
court  tliereupon  must  try  the  issue  as  issues  are 
tried  in  civil  actions,  and  if  it  be  determined  that 
such  person  is  entitled  to  the  property,  or  the 
proceeds  thereof,  it  must  order  the  property,  if 
it  has  not  been  sold,  to  be  delivered  to  him,  or  if 
it  has  been  sold  and  the  proceeds  paid  into  the 
State  treasurj%  then  it  must  order  the  controller 
to  draw  his  warrant  on  the  treasury  for  the  pay- 
ment of  the  same,  but  without  interest  or  cost  to 
the  State,  a  copy  of  which  order,  under  the  seal 
of  the  court,  shall  be  a  sufficient  voucher  for 
drawing  such  warrant.  All  persons  who  fail  to 
appear  and  file  their  petitions  within  the  time  lim- 
ited are  forever  barred;  saving,  however,  to  in- 
fants, married  women,  and  persons  of  unsound 
mind,  or  persons  beyond  the  limits  of  the  United 
States,  the  right  to  appear  and  file  their  petitions 
at  any  time  within  the  time  limited,  or  five  yeai's 
after  their  respective  disabilities  cease.  [Amend- 
ment approved  April  16,  1880;  Amendments  1880, 
p.  110.    In  effect  April  16,  1880.] 


509  CHANGE   OF    NAMES.  §§  1275,  1273 

TITLE  IX. 

OF    CHANGE    OF    NAMES. 

§  1275.  Jurisdiction. 

§  1276.  Application  for  change  of  name,  how  made. 

§  1277.  Publication  of  petition  for. 

§  1278.  Hearing  of  application   and  remonstrance. 

§  1279.  Return  by  county   clerk. 

§  1275.  Applications  for  cliange  of  names  must 
be  heard  and  determined  by  the  Superior  Courts. 
[Amendment  approved  April  23,  1880;  Amend- 
ments 1880,  p.  117.    In  effect  April  23,  1880.] 

§  1276.  All  applications  for  cliange  of  names 
must  be  made  to  the  Superior  Court  of  the  coun- 
ty where  the  person  whose  name  is  proposed  to 
be  changed  resides,  by  petition,  signed  by  such 
person;  and  if  such  person  is  under  twenty-one 
years  of  age,  if  a  male,  and  under  the  age  of 
eighteen  years,  if  a  female,  by  one  of  the  parents, 
if  living,  or  if  both  be  dead,  then  by  the  guard- 
ian; and  if  tliere  be  no  guarilian,  then  by  some 
near  relative  or  friend.  The  petition  must  speci- 
fy the  place  of  birth  and  residence  of  such  per- 
son, his  or  her  present  name,  the  name  proposed, 
and  the  reason  for  such  change  of  name;  and 
must,  if  the  father  of  such  person  be  not  living, 
name,  as  far  as  known  to  the  petitioner,  the  near 
relatives  of  such  person,  and  tlieir  place  of  resi- 
dence. Any  religious,  benevolent,  literary,  scien- 
tific, or  other  corporation,  or  any  corporation 
bearing  or  having  for  its  name,  or  using  or  being 
known  by  the  name  of,  anj^  benevolent  or  char- 
itable order  or  society,  may,  by  petition,  apply  to 
the  Superior  Court  of  the  county  in  which  its  ar- 
ticles of  incorporation  were  originally  filed,  or  in 
which  the  property  of  such  incorporation  is  sit- 


§§  1277-1279  CHANGE   OP   NAMES.  510 

uated,  for  a  change  of  its  corporate  name.  Such 
petition  must  be  signed  by  a  majority  of  the  Di- 
rectors or  Trustees  of  the  corporation,  and  must 
specify  the  date  of  the  formation  of  the  corpora- 
tion, its  present  name,  the  name  proposed,  and  the 
reason  for  such  change  of  name.  Upon  tiling 
such  petition  on  behalf  of  such  corporation,  the 
same  proceedings  shall  be  had,  as  upon  applica- 
tions for  changes  of  names  of  natural  persons, 
and  no  banking  corporation  hereafter  organized 
shall  adopt  or  use  the  name  of  any  friendly  asso- 
ciation. [Amendment  approved  March  12,  1885; 
Stats.  1885,  p.  112.    In  effect  March  12,  1885. J 

§  1277.  A  copy  of  such  petition  must  be  pub- 
lished for  four  successive  weeks,  in  some  news- 
paper printed  in  the  county,  if  a  newspaper  be 
printed  therein,  but  if  no  newspaper  be  printed 
in  the  county,  a  copy  of  such  petition  must  be 
posted  at  three  of  the  most  public  places  in  the 
county  for  a  like  period,  and  proofs  must  be 
made  of  such  publication  before  the  petition  can 
be  considered. 

§  1278.  Such  application  must  be  heard  at  such 
time  as  the  court  may  appoint,  and  objections 
may  be  filed  by  any  person  who  can,  in  such  ob- 
jections, show  to  the  court  good  reason  against 
such  ciiange  of  name.  On  the  hearing,  the  court 
may  examine  on  oath  any  of  the  petitioners,  re- 
monstrants, or  other  persons,  touching  the  appli- 
cation, and  may  make  an  order  changing  the 
name,  or  dismissing  the  application,  as  to  the 
court  may  seem  right  and  proper.  [Amendment 
approved  April  23,  1S80;  Amendments  1880,  p.  117. 
In  effect  April  23,  1880.] 

§  1279.  Each  county  clerk  shall,  annually,  in 
the  month  of  January,  make  a  return  to  the  oflice 


511  ARBITRATIONS.  §§  1281,  1282 

of  the  Secretary  of  State  of  all  changes  of  names 
made  in  the  Superior  Court  of  his  county  under 
this  title.  Such  return  shall  show  the  date  of  the 
decree  of  the  court,  original  name,  name  decreed, 
and  residence.  Such  returns  shall  be  published 
in  a  tabular  form  with  the  statutes  first  published 
thereafter.  [Amendment  approved  April  23,  1880; 
Amendments  1880,  p.  118.  In  effect  April  23, 
1880.] 


TITLE  X. 

OF   ARBITRATIONS. 

§  1281.    What  may  be  submitted  to  arbitration,  and  when. 

§  1282.     Submission  to  arbitration  to  be  in  writing. 

§  1283.  Submission  may  be  entered  as  an  order  of  the 
court.    Revocation. 

§  1284.    Powers  of  arbitrators. 

§  1285.  Majority  of  arbitrators  may  determine  any  ques- 
tion.    They  must  be  sworn. 

§  1286.  Award  to  be  in  writing.  When  judgment  to  be  en- 
tered. 

§  1287.    Award  may  be  vacated  in  certain  cases. 

§  1288.  Court  may,  on  motion,  modify  or  correct  the 
award. 

§  1289.  Decision,  on  motion,  subject  to  appeal,  but  not  the 
judgment  entered  before  motion. 

§  1290.  If  submission  be  revoked  and  an  action  brought, 
what  to  be  recovered. 

§  1281.  Persons  capable  of  contracting  may 
submit  to  arbitration  any  controversy  which 
might  be  the  subject  of  a  civil  action  between 
them,  except  a  question  of  title  to  real  property 
in  fee  or  for  life.  This  qualification  does  not  in- 
clude questions  relating  merely  to  the  partition  or 
boundaries  of  real  property. 

§  1282.  The  submission  to  arbitration  must  be 
in  writing,  and  may  be  to  one  or  more  persons. 


§§  1283-1285  ARBITRATIONS.  512 

§  1283.  It  may  be  stipulated  in  tlie  submission 
ttiat  it  be  entered  as  an  order  of  the  Superior  Court, 
for  -which  purpose  it  must  be  tiled  with  the  clerk 
of  the  county  where  the  parties,  or  one  of  them, 
reside.  The  clerk  must  thereupon  enter  in  his 
register  of  actions  a  note  of  the  submission,  with 
the  names  of  the  parties,  the  names  of  the  arbi- 
trators, the  date  of  the  submission,  when  filed, 
and  the  time  limited  by  the  submission,  if  any, 
within  which  the  award  must  bo  made.  When  so 
entered,  the  submission  cannot  be  revoked  without 
the  consent  of  both  parties.  The  arbitrators  may 
be  compelled  by  the  court  to  make  an  award,  and 
the  award  may  be  enforced  by  the  court  in  the 
same  manner  as  a  judgment.  If  the  submission 
is  not  made  an  order  of  the  court,  it  may  be  re- 
voked at  any  time  before  the  award  is  made. 
[Amendment  approved  April  15,  1880;  Amend- 
ments 1880,  p.  74.    In  effect  April  15,  1880.] 

Itegister  of  actions  generally:  Sec.  1052. 

§  1284.  Arbitrators  have  power  to  appoint  a 
time  and  place  for  hearing,  to  adjourn  from  time 
to  lime,  to  administer  oaths  to  witnesses,  to  hear 
the  allegations  and  evidence  of  the  parties,  and  to 
make  an  award  thereon. 

§  1285.  All  the  arbitrators  must  meet  and  act 
together  during  the  investigation;  but  when  met, 
a  majority  may  determine  any  question.  Before 
acting,  they  must  be  sworn  before  an  officer  au- 
thorized to  administer  oaths,  faithfully  and  fairly 
to  hear  and  examine  the  allegations  and  evidence 
of  the  parties  in  relation  to  the  matters  in  con- 
troversy, and  to  make  a  just  award  according  to 
their  understanding. 

Majority  acting:   Sec.   1053. 


513  ARBITRATIONS.  §§  12S6-1288 

§  1286.  The  award  must  be  iu  writing,  signed 
by  the  arbitrators,  or  a  majority  of  them,  and  de- 
livered to  the  parties.  When  the  submission  is 
made  an  order  of  the  court,  the  award  must  be 
filed  with  the  clerli:,  and  a  note  thereof  made  in 
his  register.  After  the  expiration  of  five  days 
from  the  filing  of  the  award,  upon  the  applica- 
tion of  a  party,  and  on  filing  an  attidavit,  showing 
that  notice  of  filing  the  award  has  been  served 
on  the  adverse  party  or  his  attorney,  at  least  four 
days  prior  to  such  application,  and  that  no  order 
staying  the  entrj-  of  judgment  has  been  served, 
the  award  must  be  entered  by  the  clerk  in  the 
judgment  booic,  and  thereupon  has  the  effect  of  a 
judgment. 

§  1287.  The  court,  on  motion,  may  vacate  the 
award  upon  either  of  the  following  grounds,  and 
may  order  a  new  hearing  before  the  same  arbitra- 
tors, or  not,  in  its  discretion: 

1.  That  it  was  procured  by  corruption  or  fraud; 

2.  That  the  arbitrators  were  guilty  of  miscon- 
duct, or  committed  gross  error  in  refusing,  on 
cause  shown,  to  postpone  the  hearing,  or  in  refus- 
ing to  hear  pertinent  evidence,  or  otherwise  acted 
improperly,  in  a  manner  by  which  the  rights  of 
the  party  were  prejudiced; 

3.  That  the  arbitrators  exceeded  their  powers 
in  making  their  aAvnrd;  or  that  they  refused,  or 
improperly  omitted,  to  consider  a  part  of  the  mat- 
ters submitted  to  them;  or  that  the  award  is  in- 
definite,  or  cannot  be  performed. 

Referee's  report:  Sees.  G43-G4.'). 

§  1288.  The  court  may,  on  motion,  modify  or 
correct  the  award,  where  it  appears: 

1.  That  there  was  a  miscalculation  in  figures 
upon  which  it  was  made,  or  that  there  is  a  mis- 


§§  1289,  1290  ARBITRATIONS.  514 

take  in  the  description  of  some  person  or  property 
therein; 

2.  "S\'hen  a  part  of  the  award  is  upon  matters 
not  submitted,  which  part  can  be  separated  from 
other  parts,  and  does  not  affect  the  decision  on 
the  matters  submitted; 

3.  AVhen  the  aAvard,  though  imperfect  in  form, 
could  have  been  amended  if  it  had  been  a  verdict, 
or  the  imperfection  disregarded. 

§  1289.  The  decision  upon  the  motion  is  sub- 
ject to  appeal  in  the  same  manner  as  an  order 
which  is  subject  to  appeal  in  a  civil  action;  but 
the  judgment  entered  before  a  motion  made  can- 
not be  subject  to  appeal. 

Motion  to  vacate  or  modify  award:  Sees.  1287, 
1288. 

Appealable  orders:  Sec.  939. 

§  1290.  If  a  submission  to  arbitration  be  re- 
voked, and  an  action  be  brought  therefor,  the 
amount  to  be  recovered  can  only  be  the  costs  and 
damages  sustained  in  preparing  for  and  attending 
the  arbitration. 

Appealable  orders:  Sec.  939. 


515  PROCEEDINGS  IN    PROBATE  COURT. 

TITLE  XI. 

OF  PROCEEDINGS  IN  PROBATE  COURT. 

Chapter  I.    Of  jurisdiction,  §§  1294-1295. 

II.    Of  the  probate  of  wills,  §§  1298-1346. 
III.    Of  executors  and  administrators,  their 
letters,    bonds,    removals,    and    sus- 
pensions, §§  1349,  1440. 
lY.    Of  the  inventory  and  collection  of  the 

effects  of  decedents,  §§  1443-1461. 
V.    Of  the  provisions  for  support  of  fam- 
ily, and  of  the  homestead,  §§  1464- 
1486. 
VI.    Of  claims  against  the  estate,  §§  1490- 

1513. 
VII.    Of  sales  and  conveyance  of  property 
to  decedent,   §§  1516-1576. 
VIII.    Of  the  powers  and  duties  of  executors 
and  administrators,  and  of  the  man- 
agement of  estates,  §§  1581-1591. 
IX.    Of  the  conveyance  of  real  estate  by 
executors  and  administrators  in  cer- 
tain oases,  §§  1597-1607. 

X.  Of     accounts  rendered     by  executors 

and  administrators,  and  of  the  pay- 
ment of  debts,  §§  1612-1653. 

XI.  Of   the   partition,,    distribution,     and 

final  settlement  of  estates,  §§  1658- 

1698. 

XII.    Of  orders,  decrees,  process,  minutes, 

records,  and  appeals,  §§  1704-1722. 

XIII.    Of  public  administrator,  §§  1726-1743. 

XIV.    Of  guardian  and  ward,  §§  1747-1809. 


§§  1294,  1295  JURISDICTION.  516 

CHAPTER  I. 

OP    JURISDICTION. 

§  1294.    Jurisdiction  of  Probate  Court  over  the  estate,  when 

exercised. 
§  1295.    When  jurisdiction  decided  by  first  application. 

§  1294.  Wills  must  be  proved,  and  letters  testa- 
mentary or  of  administration  granted: 

1.  In  the  county  of  wliieli  tlie  decedent  was  a 
resident  at  tlie  time  of  bis  deatb,  in  whatever 
place  be  may  bave  died; 

2.  In  tbe  county  in  wbicb  tbe  decedent  may 
bave  died,  leaving  estate  therein,  be  not  being  a 
resident  of  tbe  State; 

o.  In  tbe  county  in  wbicb  any  part  of  tbe  es- 
tate may  be,  ibe  decedent  having  died  out  of  the 
estate,  and  not  resident  thereof  ac  the  time  of  bis 
death; 

4.  In  tbe  county  in  wbicb  any  part  of  tbe  es- 
tate may  be,  tbe  decedent  not  being  a  resident  of 
the  State,  and  not  leaving  estate  in  tbe  county  in 
wbicb  be  died; 

5.  In  all  other  cases,  in  the  county  where  ap- 
plication for  letters  is  tirst  made. 

Probate  matters,  jurisdiction  of  Superior  Courts 
in:  Sec.  TO,  subd.  4. 

§  1295.  AVheu  tbe  estate  of  the  decedent  is  in 
more  than  one  county,  be  having  died  out  of  the 
State,  and  not  having  been  a  resident  thereof  at 
tbe  time  of  bis  death,  or  being  such  non-resident,, 
and  dying  within  the  State,  and  not  leaving  estate 
in  the  county  where  he  died,  tbe  Superior  Court 
of  that  county  in  which  application  is  first  made, 
for  letters  testamentary  or  of  administration,  has 
exclusive  jurisdiction  of  the  settlement  of  tbe  es- 
tate. [Amendment  approved  April  16,  1880;. 
Amendments  1880,  p.  77.    In  effect  April  IG,  1880.] 


517  PROBATE    OF   WILLS.  §  1298 

CHAPTER  II. 

OP  THE  PROBATE  OF  WILLS. 

Article  I.  Petition,  Notice,  and  Proof. 

II.  Contesting  Probate  of  Will. 

III.  Probate  of  Foreign  Wills. 

IV.  Contesting  Will  after  Probate. 

v.    Probate  of  Lost  or  Destroyed  Will. 
VI.    Probate  of  Nuncupative  Wills. 

ARTICLE  I. 

PETITION,  NOTICE,  AND  PROOF. 

§  1298.  Custodian  of  will  to  deliver  same,  to  whom.  Pen- 
alty. 

§  1299.    Who  may  petition  for  probate  of  will. 

§  1300.     Contents  of  petition. 

§  1301.    When   executor  forfeits  right  to   letters. 

§  1302.  Will  to  accompany  petition,  or  its  presentation 
prayed  for  and  how  enforced, 

9  1303.    Notice  of  petition  for  probate,   how  given. 

§  1304.    Heirs  and  named  executors  to  be  notified,  how. 

5  1305.  Petition  may  be  presented  to  judge  at  chambers, 
and  what  judge  may  do. 

§  1306.  Hearing  proof  of  will  after  proof  of  service  of  no- 
tice. 

§  1307.    Who  may  appear  and  contest  the  will. 

§  1308.    Probate,    when   no   contest. 

§  1309.     Olographic  wills. 

§  1298.  Every  custodian  of  a  will,  within  thir- 
ty days  after  receipt  of  information  that  the 
maker  thereof  is  dead,  must  deliver  the  same  to 
the  Superior  Court  having  jurisdiction  of  the  es- 
tate, or  to  the  executor  named  therein.  A  failure 
to  comply  with  the  provisions  of  this  section 
makes  the  person  failing  responsible  for  all  dam- 
ages sustained  by  any  one  injured  thereby. 
[Amendment  approved  April  IG,  1880;  Amend- 
ments 1880,  p.  77.  In  effect  April  16,  1880.  j 
Code  Civ.   Proc— 44. 


§§  1299-1302  PROBATE  OF  WILLS.  518 

§  1299.  xiuy  executor,  devisee,  or  legatee 
named  in  any  will,  or  any  other  person  interested 
in  the  estate,  may,  at  any  time  after  the  death 
of  the  testator,  petition  the  court  having  jurisdic- 
tion to  have  the  will  proved,  whether  the  same  be 
in  writing,  in  his  possession  or  not,  or  is  lost  or 
destroyed,  or  beyond  the  jurisdiction  of  the  State, 
or  a  nuncupative  will. 

§  1300.  A  petition  for  the  probate  of  a  will 
must  show: 

1.  The  jurisdictional  facts; 

2.  Whether  the  person  named  as  executor  con- 
sents to  act,  or  renounces  his  right  to  letters  testa- 
mentary; 

3.  The  names,  ages,  and  residence  of  the  heirs 
and  devisees  of  the  decedent,  so  far  as  known  to 
the  petitioner; 

4.  The  probable  value  and  character  of  the 
property  of  the  estate; 

5.  The  name  of  the  person  for  whom  letters 
testamentary  are  prayed. 

No  defect  of  form,  or  in  the  statement  of  juris- 
dictional facts  actually  existing,  shall  make  void 
the  probate  of  a  will.  [Amendment  approved 
March  24.  1874;  Amendments  1873-4,  p.  356.  In 
effect  July  1,  1874.] 

§  1301.  If  the  person  named  in  a  will  as  ex- 
ecutor, for  thirty  days  after  he  has  knowledge 
of  the  death  of  the  testator,  and  that  he  is  named 
as  executor,  fails  to  petition  the  proper  court  for 
the  probate  of  the  will,  and  that  letters  testa- 
mentary be  issued  to  him,  he  may  be  held  to  have 
renounced  his  right  to  letters,  and  the  court  may 
appoint  nny  other  competent  person  administra- 
tor, unless  good  cause  for  delay  is  shown. 

§  1302.    If  it  is  alleged  in  any  petition  that  any 


519  PROBATE  OF  WILLS.  §§  1303,  130i 

will  is  in  the  possession  of  a  third  person,  and  the 
court  is  satisfied  that  the  allegation  is  correct, 
an  order  must  be  issued  and  served  upon  the 
person  having  possession  of  the  will,  requiring 
him  to  produce  it  at  a  time  named  in  the  order. 
If  he  has  possession  of  the  will,  and  neglects  or 
refuses  to  produce  it  in  obedience  to  the  order, 
he  may,  by  warrant  from  the  court,  be  commit- 
ted to  the  jail  of  the  county,  and  be  kept  in  close 
confinement  until  he  produces  it. 

Probate  orders  and  citations:  Sees.  1704-1711. 

Imprisonment  until  order  obeyed:  Sec.  1219. 

§  1303.  AVhen  the  petition  is  filed  and  the  will 
produced,  the  clerk  of  the  court  must  set  the  pe- 
tition for  hearing  by  the  court  upon  some  day  not 
less  than  ten  nor  more  than  thirty  days  from 
the  production  of  the  will.  Notice  of  the  hearing 
shall  be  given  by  such  clerk  by  publishing  the 
same  in  a  newspaper  of  the  county;  if  there  is 
none,  then  by  three  written  or  printed  notices 
posted  at  three  of  the  most  public  places  in  the 
county.  If  the  notice  is  published  in  a  weekly 
newspaper,  it  must  appear  therein  on  at  least 
three  different  days  of  publication;  and  if  in  a 
newspaper  published  oftener  than  once  a  week, 
it  shall  be  so  published  that  there  must  be  at  least 
ten  days  from  the  first  to  the  last  day  of  publi- 
cation, both  the  first  and  the  last  day  being  in- 
cluded. If  the  notice  is  by  posting,  it  must  be 
given  at  least  ten  days  before  the  hearing. 
[Amendment  approved  March  3,  1881;  Stats.  1881, 
p.  23.] 

Publication  of  notice:  Sec.  1705. 

§  1304.  Copies  of  the  notice  of  the  time  ap- 
pointed for  the  probate  of  the  will  must  be  ad- 
dressed to  the  heirs  of  the  testator  resident   in 


§§  1305-1307  PROBATE   OF  WILLS.  520 

the  State,  at  their  places  of  residence,  if  knowu 
to  the  petitioner,  and  deposited  in  the  postoflice, 
with  the  postage  thereon  prepaid,  at  least  ten  days 
before  the  hearing.  If  their  places  of  residence  be 
not  known,  the  copies  of  notice  may  be  addressed 
to  them,  and  deposited  in  the  postoffice  at  the 
county  seat  of  the  county  where  the  proceedings 
are  pending.  A  copy  of  the  same  notice  must  in 
like  manner  be  mailed  to  the  person  named  as 
executor,  if  he  be  not  the  petitioner;  also,  to  any 
person  named  as  coexecutor  not  petitioning,  if 
their  places  of  residence  be  known.  Proof  of  mail- 
ing the  copies  of  the  notice  must  be  made  at  the 
hearing.  Personal  service  of  copies  of  the  notice 
at  least  ten  days  before  the  day  of  hearing  is 
equivalent  to  mailing.  [Amendment  approved 
March  24,  1S74;  Amendments  1873-4,  p.  357.  In 
effect  July  1,  1874.] 

§  1305.  A  judge  of  the  superior  court  may  at 
any  time  make  and  issue  all  necessary  orders  and 
writs  to  enforce  the  production  of  wills  and  the 
attendance  of  witnesses.  [Amendment  approved 
March  31,  1891;  Stats.  1891,  427.] 

Probate  poAvers  at  chambers:  Sec.  106. 

Probate  orders  and  processes:  Sec.  1704  et  seq. 

§  1306.  At  the  time  appointed  for  the  hear- 
ing, or  the  time  to  which  the  hearing  may  have 
been  postponed,  the  court,  unless  the  parties  ap- 
pear, must  require  proof  that  the  notice  has  been 
given,  which  being  made,  the  court  must  hear 
testimony  in  i^roof  of  the  will.  [Amendment  ap- 
proved Marcli  24.  1874;  Amendments  1873-4.  p. 
357.     In  effect  July  1,  1874.] 

Testimony  in  proof  of  the  will:  Sees.  1308,  1309. 
1315,   131G. 

§  1307.    Any  person  interested  may  appear  and 


521  PROBATE  OF  WILLS.  §§  1308,  1309 

contest  the  Avill.  Devisees,  legatees,  or  heirs  of 
au  estate  may  contest  tlie  will  through  their  guar- 
dians, or  attorneys  appointed  by  themselves  or  by 
the  court  for  that  purpose;  but  a  contest  made  by 
an  attorney  appointed  by  the  court  does  not  bar 
a  contest  after  probate  by  the  party  so  represent- 
ed, if  commenced  within  the  time  provided  in  ar- 
ticle four  of  this  chapter;  nor  does  the  non-ap- 
pointment of  an  attorney  by  the  court  of  itself 
invalidate  the  probate  of  a  will.  [Amendment 
approved  ^Nlarch  24,  1874;  Amendments  1873-4,  p. 
357.    In  effect  July  1,  1874.] 

Contest:  Sec.  1312  et  seq. 

Guardians:  Sees.  372,  373,  1747-1809. 

Attorneys,   generally:   Sees.  275-299. 

Attorney  appointed  by  the  court:  Sec.  1718. 

§  1308.  If  no  person  appears  to  contest  the 
probate  of  a  will,  the  court  may  admit  it  to  pro- 
bate on  the  testimony  of  one  of  the  subscribing 
witnesses  only,  if  he  testifies  that  the  will  was 
executed  in  all  particulars  as  required  by  law,  and 
that  the  testator  was  of  sound  mind  at  the  time 
of  its  execution. 

Admitting  to  probate,  where  contest:  Sees.  1314, 
1317,  1318;  conclusiveness  of,  sec.  1908,  subd.  1. 

Will  was  executed,  proof  of  execution  of  writ- 
ing: Sec.  1940. 

§  1309.  An  olographic  will  may  be  proved  in 
the  same  manner  that  other  private  writings  are 
proved. 

Private  writings,  how  proved:  Sec.  1940. 


Hwy^^tok  a3//^A 


§  1312  PROBATE   OF  WILLS.  522 

AirncLE  II. 

CONTESTING  PROBATE  OF  WILLS. 

§  1312.  Contestant  to  file  grounds  of  contest,  and  petition- 
er to  reply. 

§  1313.    How  jury  obtained  and  trial  had. 

§  1314.    Verdict  of  the  jury.     Judgment.     Appeal. 

§  1315.  Witnesses,  who  and  how  many  to  be  examined. 
Proof  of  handwriting,   admitted,   when. 

§  1316.    Testimony  reduced  to  writing  for  future  evidence. 

§  1317.    If  proved,  certificate  to  be  attached. 

§  1318.    Will  and  proof  to  be  filed  and  recorded. 

§  1312.  If  any  one  appears  to  contest  the  will, 
he  must  file  written  grounds  of  opposition  to  the 
probate  thereof,  and  serve  a  copy  on  the  peti- 
tioner and  other  residents  of  the  county  interested 
in  the  estate,  any  one  or  more  of  Avhom  may  de- 
mur thereto  upon  any  of  the  grounds  of  demurrer 
provided  for  in  part  two,  title  six,  chapter  three, 
of  this  Code.  If  the  demurrer  is  sustained,  the 
court  must  allow  the  contestant  a  reasonable  time, 
not  exceeding  ten  days,  within  which  to  amend 
his  written  opposition.  If  the  demurrer  is  over- 
ruled, the  petitioner  and  others  interested  may 
jointly  or  separately  answer  the  contestant's 
grounds,  traversing  or  otherwise  obviating  or 
avoiding  the  objections.  Any  issues  of  fact  thus 
raised,    involving: 

1.  The  competency  of  the  decedent  to  make  a 
last  will  and  testament; 

2.  The  freedom  of  the  decedent  at  the  time  of 
the  execution  of  the  will  from  duress,  menace, 
fraud,  or  undue  influence; 

3.  Tlie  due  execution  and  attestation  of  the  will 
by  the  decedent  or  subscribing  witnesses;  or, 

4.  Any  other  questions  substantially  affecting 
the  validity  of  the  will— 


523  PROBATE   OF  WILLS.  §§  1313,  1314 

Must,  on  request  of  either  party  in  writing, 
(tiled  three  days  prior  to  the  day  set  for  the  hear- 
ing), be  tried  by  a  jury.  If  no  jury  is  demanded, 
the  court  must  try  and  determine  the  issues  join- 
ed. On  the  trial,  the  contestant  is  plaintiff  and 
the  petitioner  is  defendant. 

Contestants:  Sec.  1307. 

Contest,  after  probate:  Sec.  1327  et  seq.;  through 
attorney  appointed  by  the  court,  sec.  1307. 

J]xecution:  See  sec.  1315. 

Grouads  of  demurrer:  Sees.  430-434. 

Fart  2,  title  0,  chapter  3:  See  ante,  sec.  430. 

Attorney,  court  may  appoint,  to  represent:  Sec. 
171S. 

Service,  etc.:  Sees.  1010-1017. 

§  1313.  When  a  jury  is  demanded,  the  Supe- 
rior Court  must  impannel  a  jury  to  try  the  case, 
in  the  manner  provided  for  impanneling  trial  ju- 
ries in  courts  of  record;  and  the  trial  must  be 
conducted  in  accordance  -svith  the  provisions  of 
part  two,  title  eight,  chapter  four,  of  this  Code. 
A  trial  by  tiie  court  must  be  conducted  as  pro- 
vided in  part  two,  title  eight,  chapter  five,  of  this 
Code.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  78.    In  effect  April  16,  1880.] 

Trial  juries,  in  courts  of  record,  summoning: 
Sees.  225-228;  impanneling,  sees.  240,  247. 

Conduct  of  trial:  Sec.  607;  sees.  600-628. 

Trial  by  the  court:  Sees.  631-636. 

Transfer  of  proceeding:  Sees.  397,  398,  1431-1433. 

§  1314.  The  jury,  after  hearing  the  case,  must 
return  a  special  verdict  upon  the  issues  submit- 
ted to  them  by  the  court;  upon  which  the  judg- 
ment of  the  court  must  be  rendered,  either  admit- 
ting the  will  to  probate  or  rejecting  it.  In  either 
case,  the  proofs  of  the  subscribing  M^tnesses  must 


§§  1315-1317  PROBATE   01^^  WILLS.  524 

be  reduced  to  writing.  If  tlie  will  is  admitted  to 
probate,  the  judgment,  Avill,  and  proofs  must  be 
recorded. 

Special  verdict,  conclusiveness  of:  Sec.  1317;  ver- 
dict, generally,  sees.  624-628. 

Proofs  reduced  to  writing:  See  sec.  1316. 

§  13J5.  If  the  will  is  contested,  all  the  sub- 
scribing witnesses  who  are  present  in  the  county, 
and  who  are  of  sound  mind,  must  be  produced  and 
examined,  and  the  death,  absence,  or  insanity  of 
any  of  them  must  be  satisfactorily  shown  to  the 
court.  If  none  of  the  subscribing  witnesses  re- 
side in  the  county  at  the  time  appointed  for  prov- 
ing the  will,  the  court  may  admit  the  testimony 
of  other  wi  tnesses  to  prove  the  sanity  of  the  testa- 
tor and  the  execution  of  the  will;  and  as  evi- 
dence of  the  execution  it  may  admit  proof  of  the 
handwriting  of  the  testator  and  of  the  subscribing 
witnesses,  or  any  of  them. 

Writings,  proof  of  execution:  Sec.  1940. 

Witnesses,  generally:  Sec.  1878-1884;  attend- 
ance of,  procuring,  sec.  1985  et  seq. 

§  1316.  The  testimony  of  each  witness,  re- 
duced to  writing  and  signed  by  him,  shall  be  good 
evidence  in  any  subsequent  contests  concerning 
the  validity  of  the  will,  or  the  sufficiency  of  the 
proof  thereof,  if  the  witness  be  dead,  or  has  per- 
manently removed  from  this  State. 

§  1317.  If  the  court  is  satisfied,  upon  the  proof 
taken,  or  from  the  facts  found  by  the  jury,  that 
the  will  was  duly  executed,  and  that  the  testator 
at  the  time  of  its  execution  was  of  sound  and 
disposing  mind,  and  not  acting  under  duress,  men- 
ace, fraud,  or  undue  influence,  a  certificate  of  the 
proof  and  the  facts  found,   signed  by  the  judge 


525  PROBATE  OF  WILLS.  §§  1318,  1323 

and  attested  by  the  seal  of  the  court,  must  be  at- 
tached to  the  will.     [Amendment  approved  April 
15,  1880;  Amendments  1880,  p.  01.    In  effect  April 
10,  1880.] 
Seal  required:  Sec.  153,  subd.  2. 

§  1318.  The  will,  and  a  .certificate  of  the  proof 
thereof,  must  be  filed  and  recorded  by  the  clerk, 
and  the  same,  when  so  filed  and  recorded,  shall 
constitute  part  of  the  record  in  the  cause  or  pro- 
ceeding.  All  testimony  shall  be  filed  by  the  clerk. 
[Amendment  approved  April  15,  1880;  Amend- 
ments 1880,  p.  61.     In  effect  April  15,  1880.] 


ARTICLE  III. 

PROBATE   OF  FOREIGN   WILLS. 

§  1322.     Wills  proved  in  other  States  to  be  recorded,  when 

and  where. 
§  1323.     Proceedings  on  the  production  of  a  foreign  will. 
§  1324.    Hearing  proofs  of  probate  o     foreign  will. 

§  1322.  All  wills  duly  proved  and  allowed  in 
any  other  of  the  United  States,  or  in  any  foreign 
country  or  State,  may  be  allowed  and  recorded  in 
the  Superior  Court  of  any  county  in  which  the 
testator  shall  have  left  any  estate.  [Amendment 
approved  April  16,  1880;  Amendments  1880,  p.  61. 
In  effect  April  16,  1880.] 

§  1323.  AVhen  a  copy  of  the  will  and  the  pro- 
bate thereof,  duly  authenticated,  shall  be  pro- 
duced by  the  executor,  or  by  any  other  person 
interested  in  the  will,  with  a  petition  for  letters, 
the  same  must  be  filed,  and  the  court  or  judge 
must  appoint  a  time  for  the  hearing;  notice  where- 
of must  be  given  as  hereinbefore  provided  for  an 
original  petition  for  the  probate  of  a  will. 


§§  1324,  1327  PROBATE  OF  WILLS.  526 

Foreign  executor,  no  extra  territorial  authority: 
See  sec.   1913. 

Notice  as  for  an  original  petition:  See  sec.  1303 
et  seq. 

Attorney  for  absent  heirs:  Sec.  1718. 

Petition,   notice,   etc.:   Sees.   1299-1318. 

§  1324.  If,  on  the  hearing,  it  appears  upon  the 
face  of  the  record  that  the  will  has  been  proved, 
allowed,  and  admitted  to  probate  in  any  other  of 
the  United  States,  or  in  any  foreign  country,  and 
that  it  was  executed  according  to  the  law  of  the 
place  in  which  the  same  was  made,  or  in  which 
the  testator  was  at  the  time  domiciled,  or  in  con- 
formity with  the  laws  of  this  State,  it  must  be  ad- 
mitted to  probate  and  have  the  same  force  and 
effect  as  a  will  first  admitted  to  probate  in  this 
State,  and  letters  testamentary  or  of  administra- 
tion issued  thereon. 

Letters  testamentary  or  of  administration:  Sees. 
1349-1362. 

ARTICLE  lY. 

CONTESTING  WILL  AFTER  PROBATE. 

§  1327.    The  probate  may  be  contested  within  one  year. 

§  1328.     Citation  to  be  issued  to  parties  interested. 

§  1329.    The  hearing  had  on  proof  of  service. 

§  1330.    Petitions  to  revoke  probate  of  will  tried  by  jury  or 

court.    Judgment,  what. 
§  1331.     On  revocation  of  probate,  powers  of  executor,  etc. 

cease,  but  not  liable  for  acts  in  good  faith. 
§  1332.     Costs  and  expenses,  by  whom  paid. 
§  1333.    Probate,  when  conclusive.     One  year  after  removal 
of  disability  given  to  infants  and  others. 

§  1327.    When  a  will  has  been  admitted  to  pro- 
bate, any  person  interested  may,  at  any  time  with- 
in one  year  after  such  probate,  contest  the  same 
or  the  validity  of  the  will.     For  tliat  purpose  he 
.  ^    must   file    in    the    court    in    which   the   will   was 


I 


^< 


527  PROBATE  OF  WILLS.  §§  1328-1330 

proved,  a  petition  in  writing,  containing  his  al- 
legations against  the  validity  of  the  will  or 
against  the  sufficiency  of  the  proof,  and  praying 
that  the  probate  may  be  revolted. 

Allegations  against  validity  of  will:  See  sec. 
1312. 

Probate,  conclusive:  Sec.  1333. 

§  1328.    Upon  filing     the     petition,   a  citation 
must  be  issued  to  the  executors  of  the  will,  or  to 
the  administrators  with  the  will  annexed,  and  to 
all  the  legatees  and  devisees  mentioned   in  the 
will,   and  heirs  residing  in  the  State,   so  far  as 
known  to  the  petitioner;  or  to  their  guardians,  if 
any  of  them  are  minors;  or  to  their  personal  rep- 
resentatives, if  any  of  them  are  dead;  requiring 
them  to  appear  before  the  court  on  some  day  of  a 
regular  term,  therein  specified,  to  show  cause  why 
-^  the  probate  of  the  will  should  not  be  revolted. 
Nj  [Amendment  approved   March  24,  1874;  Amend- 
^  ments  1873-4,  p.  358.    In  effect  July  1,  1874.] 

Citation:  See  sees.  1707-1711. 
Guardians:  Sec.  1722;  sec.  1747  et  seq. 

§  1329.    At  the  time     appointed     for  showing 

cause,   or  at  any  time  to  which  the  hearing  is 

^  postponed,  personal  service  of  the  citations  having 

C?    been  made  upon  any  persons  named  therein,  the 

^    court  must  proceed  to  try  the  issues  of  fact  joined 

fin  the  same  manner  as  an  original  contest  of  a 
will. 

3"       Proof  of  notice:  See  sec.  1306. 

Try  the  issues  joined:  See  sec.  1312. 

§  1330.  In  all  cases  of  petitions  to  revoke  the 
probate  of  a  will,  wherein  the  original  probate 
•2  was  granted  without  a  contest,  on  written  demand 
;:   of  either  party,  filed  three  days  prior  to  the  hear- 


§§  1331-1333  PROBATE   OF  WILLS.  528 

ing,  a  trial  by  jury  must  be  had  as  in  cases  of 
ttie  contest  of  an  original  petition  to  admit  a  will 
to  probate.  If,  upon  hearing  the  proofs  of  the 
parties,  the  jury  shall  find,  or  if  no  jury  is  had, 
the  court  shall  decide,  that  the  will  is  for  any 
reason  invalid,  or  that  it  is  not  sutticiently  proved 
to  be  the  last  will  of  the  testator,  the  probate 
must  be  annulled  and  revoked. 
Jury,  trial  by:   Sees.  1313,  1314. 

§  1331.  Upon  the  revocation  being  made,  the 
powers  of  the  executor  or  administrator  with  the 
will  annexed  must  cease;  but  such  executor  or  ad- 
ministrator shall  not  be  liable  for  any  act  done 
in  good  faith  previous  to  the  revocation. 

Acts  before  revocation,  valid:  Sec.  1428. 

§  1332.  The  fees  and  expenses  must  be  paid 
by  the  party  contesting  tlie  validity  or  probate  of 
the  will,  if  the  will  in  probate  is  confirmed.  If 
the  probate  is  revolved,  the  costs  must  be  paid  by 
the  party  who  resisted  the  revocation,  or  out  of 
the  property  of  the  decedent,  as  the  court  directs. 

Costs,  generally:   Sec.  1021  et  seq. 

§  1333.  If  no  person,  within  one  year  after  the 
probate  of  a  w'ill,  contest  the  same  or  the  valid- 
ity thereof,  the  probate  of  the  will  is  conclusive; 
saving  to  infants  and  persons  of  unsound  mind  a 
lilvc  period  of  one  year  after  their  respective  dis- 
abilities are  removed.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  p.  358.  In 
effect  July  1,  1874.] 

Conclusiveness  of  probate:  Sec.  1908,  subd.  1.: 
see.  also,  sec.  1327,  ante. 


520  PROBATE   OF  WILLS.  §§  1338-1340 

ARTICLE  V. 

PROBATE  OF  LOST  OR  DESTROYED  WILL. 

§  1338.     Proof  of  lost  or  destroyed  will  to  be  taken. 

§  1339.    Must  have  been  in  existence  at  time  of  death. 

§  1340.    To     be     certified,     recorded,     and     letters     thereon 

granted. 
§  1341.     Court  to  restrain  injurious  acts  of  executors  or  ad- 
ministrators during  proceedings  to  prove  lost  will. 

§  1338.  Whenever  any  will  is  lost  or  destroyed, 
the  Superior  Court  must  take  proof  of  the  execu- 
tion and  validity  thereof,  and  establish  the  same; 
notice  to  all  persons  interested  being  first  given, 
as  prescribed  in  regard  to  proofs  of  Avills  in  either 
cases.  All  the  testimony  given  must  be  reduced  to 
writing,  and  signed  by  the  witnesses.  [Amend- 
ment approved  April  IG,  1880;  Amendments  1880, 
p.  78.     In  effect  April  IG,  1880.] 

Notice  as  to  all  persons  interested:  Sees.  1303, 
1304;  by  citation,  sees.  1707-1711;  service  of  pa- 
pers, sec.  1010  et  sea. 

§  1339.  No  will  shall  be  proved  as  a  lost  or  de- 
<stroyed  will,  unless  the  same  is  proved  to  have 
^been  in  existence  at  the  time  of  the  death  of  the 
>;testator,  or  is  shown  to  have  been  fraudulently 
r  destroyed  in  the  lifetime  of  the  testator,  nor  uii- 
v'less  its  provisions  are  clearly  and  distinctly 
^proved  by  at  least  two  credible  witnesses. 

§  1340.  When  a  lost  will  is  established,  the 
provisions  thereof  must  be  distinctly  stated  and 
certified  by  the  judge,  under  his  hand  and  the 
seal  of  the  court,  and  the  certificate  must  be  filed 
and  recorded  as  other  wills  are  filed  and  recorded. 
and  letters  testamentary  or  of  administration, 
M-ith  the  will  annexed,  must  be  issued  thereon  in 

Code  Civ.   Proc— 45. 


§§  1341,  1344  PROBATE  OF  WILLS.  ^  530 

the  same  manner  as  upon  wills  produced  and  duly- 
proved.  The  testimony  must  be  reduced  to  writ- 
ing, signed,  certified,  and  filed  as  in  other  eases, 
and  sliall  have  the  same  effect  as  evidence  as  pro- 
vided in  section  one  thousand  three  hundred  and 
sixteen.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  78.  In  effect  April  16,  1880.] 
Certificate:  Sec.  1317.  .  ^./ 

Letters  testamentary,  etc.:  Sees.  1349-1362. 

§  1341.  If  before,  or  during  the  pendency  of  an 
application  to  prove  a  lost  or  destroyed  will,  let- 
ters of  administration  are  granted  on  the  estate 
of  the  testator,  or  letters  testamentary  of  any 
previous  will  of  the  testator  are  granted,  the 
court  may  restrain  the  administrators  or  ex- 
ecutors so  appointed  from  any  acts  or  proceedings 
which  would  be  injurious  to  the  legatees  or  devi- 
sees claiming  under  the  lost  or  destroyed  will. 


ARTICLE  VI. 

THE  PROBATE  OF  NUNCUPATIVE  WILLS. 

§  1344.  Nuncupative  wills,  when  and  how  admitted  to  pro- 
bate. 

§  1345.  Additional  requirements  in  probate  of  nuncupative 
wills. 

§  1346.  Contests  and  appointments  to  conform  to  provi- 
sions as  to  other  wills. 

§  1344.  Nuncupative  wills  may  at  any  time, 
within  six  months  after  the  testamentary  words 
are  spolvcn  by  the  decedent,  be  admitted  to  pro- 
bate, on  petition  and  notice  as  provided  in  article 
one,  chapter  two,  of  this  title.  The  petition,  in 
addition  to  the  jurisdictional  facts,  must  allege 
that  the  testamentary  words  or  the  substance 
thereof     were  reduced  to     writing  within  thirty 


531  PROBATE   OF  WILLS.  §§  1345,  1346 

days  after  they  were  spoken,  which  writing  must 
accompany  the  petition. 

Nuncupative  wills,   Civil  Code,   sees.   1288-1291. 

Petition   and   notice:    Sees.   1298-1309. 

§  1345.  The  Superior  Court  must  not  receive  or 
entertain  a  petition  for  the  probate  of  a  nuncu- 
pative will  until  the  lapse  of  ten  days  from  the 
death  of  the  testator,  nor  must  such  petition  at 
any  time  be  acted  on  until  the  testamentary  words 
are,  or  their  substance  is,  reduced  to  writing  and 
filed  with  the  petition,  nor  until  the  surviving 
husband  or  wife  (if  any),  and  all  other  persons  res- 
ident in  the  State  or  county  interested  in  the  es- 
tate, are  notified  as  hereinbefore  provided. 
[Amendment  approved  April  16,  1880;  Amend- 
ments ISSO,  p.  79.    In  effect  April  16,  1880.] 

§  1346.  Contests  of  the  probate  of  nuncupative 
wills,  and  appointments  of  executors  and  admin- 
istrators of  the  estate  devised  thereby,  must  be 
had,  conducted,  and  made  as  hereinbefore  pro- 
vided in  cases  of  the  probate  of  written  wills. 

Probate  contests:  Sec,  1312  et  seq.;  sec.  1327  et 
seq. 

Contesting  appointment  of  executors,  etc.:  Sees. 
1351-1374. 


§  1348        EXECUTORS    AND    ADMINISTRATORS.  532 


CHAPTER  III. 

OF  EXECUTORS  AND  ADMINISTRATORS,   THEIR   LET- 
TERS,   BONDS,    REMOVALS,    AND   SUS- 
PENSIONS. 


ARTICLE   I. 

LETTERS     TESTAMENTARY     AND     OF     ADMINISTRA- 
TION,  WITH  THE  WILL  ANNEXED,   HOW  AND 
TO   WHOM  ISSUED. 

§  1348.     Corporations   as   executors. 

§  1349.     To  whom  letters  on  proved  will  to  issue. 

§  1350.  Who  are  incompetent  as  executors  or  administra- 
tors.    Letters  with  will  annexed  to  issue,  when. 

§  1351.    Interested  parties  may  file   objections. 

§  1352.  Unmarried  woman  executrix  or  administratrix  mar- 
rying, her  authority  ceases.  Married  woman 
named  may  be  executrix,  but  not  administratrix. 

§  1353.     Executor  of  an  executor. 

§  1354.     Letters   of  administration   durante    minore   aetate. 

§  1355.     Acts  of  a  portion  of  executors  valid. 

§  1356.  Authority  of  administrators  with  will  annexed. 
Letters,   how  issued. 

§  1348.  Corporations,  authorized  by  their  arti- 
cles of  incorporation  to  act  as  executor,  admin- 
istrator, guardian  of  estates,  assignee,  receiver, 
depository,  or  trustee,  and  having  a  paid  up  capi- 
tal of  not  less  than  two  hundred  and  fifty  thou- 
sand dollars,  of  wliieli  one  hundred  thousand  dol- 
lars shall  have  been  actually  paid  in  in  cash,  may 
be  appointed  to  act  in  such  capacity  in  like  man- 
ner as  individuals.  In  all  cases  in  which  it  is  re- 
quired that  an  executor,  administrator,  guardian, 
assignee,  receiver,  depository,  or  trustee,  shall 
qualify  by  talcing  and  subscribing  an  oath,  or  in 
which  an  affidavit  is  required,  it  shall  be  a  suffi- 
cient qualification  by  such  corporation,  if  such 
oath  shall  be  taken  and  subscribed,  or  such  affi- 


533  EXECUTORS.    ETC.  §§  1349.  1350 

davit  made,  by  the  president  or  secretary  or  man- 
ager tliereof;  and  sucli  otticer  shall  be  liable  for 
the  failure  of  such  corporatiou  to  perform  any  of 
the  duties  required  by  law  to  be  performed  by 
individuals  acting  in  lil^e  capacity  and  subject  to 
lilve  penalties;  and  such  corporation  shall  be  lia- 
ble for  such  failure  to  the  full  amount  of  its 
capital  stock  and  upon  the  bond  required  upon  its 
assuming  the  trusts  provided  for  herein.  [New 
section  approved  March  5,  1887;  Stats.  1887,  p.  21. 
In  effect  March  5.  1887.] 

§  1349.    The  court  admitting  a  will  to  probate, 

after  the  same  is  proved  and  allowed,  must  issue 

.^,  letters  thereon  to  the  persons  named  therein  as 

S:  executors   "who    are    competent   to    discharge   the 

>i  trust,  who  must  appear  and  qualify,,  unless  ob- 

^  jection   is   made   as   provided  in  section  thirteen 

^  hundred   and   fifty-one. 

[5     Letters  testamentary,  form  of:  Sec.  13G0. 

Qualification  of  executors:  Sees.  1387-1407;  pow- 
ers before:  Cirii  Code,  sec.  1373. 

§  1350.  No  person  is  competent  to  serve  as 
executor  who,  at  the  time  the  will  is  admitted  to 

>^  probate,  is: 

Nj<      1.    Under  the  age  of  majority; 

>      2.    Convicted  of  an  infamous  crime; 

^       3.    Adjudged  by  the  court  incompetent  to  exe- 

^    cute  the  duties  of  the  trust  by  reason  of  drunk- 

^    enness,   improvidence,  or  want  of  understanding 

J     or  integrity. 

If  the  sole  executor  or  all  the  executors  are 
incompetent,  or  renounce,  or  fail  to  apply  for  let- 
ters, or  to  appear  and  qualify,  letters  of  adminis- 
tration, with  the  will  annexed,  must  be  issued  as 
designated  and  provided  for  the  grant  of  letters  in 
cases  of  intestacy.     [Amendment  approved  April 


§§  1351-1354  EXECUTORS,     ETC.  534 

1,  187S;  Amendments  1877-8,  p.  111.  In  effect 
sixty  days  after  passage.] 

Incompetent  to  serve  as  executors,  subd.  1, 
minor:  See  sec.  1354,  subd.  3. 

Some  of  executors  unable  to  act:  Sec.  1354. 

Marriage,  as  affecting  competency:  Sec.  1352. 

Letters  of  administration  with  will  annexed: 
See.  1356. 

§  1351.  Any  person  interested  in  a  will  may 
file  objections  in  writing,  to  granting  letters  testa- 
mentary to  the  persons  named  as  executors,  or 
any  of  them,  and  the  objections  must  be  heard 
and  determined  by  the  court;  a  petition  may,  at 
the  same  time,  be  filed  for  letters  of  administra- 
tion with  the  will  annexed. 

Letters  of  administration  with  will  annexed: 
Sec.  1356. 

§  1352.  A  married  woman  may  be  appointed 
an  executrix.  Tlie  authority  of  an  executrix  who 
was  unmarried  when  appointed  is  not  extinguish- 
ed nor  affected  by  her  marriage,  [Amendment 
approved  March  19,  1891;  Stats.  1891,  p.  136.] 

Married  woman,  not  to  be  administratrix:  Sec. 
1370. 

§  1353.  No  executor  of  an  executor  shall,  as 
such,  be  authorized  to  administer  on  the  estate 
of  the  first  testator,  but  on  the  death  of  the  sole 
or  surviving  executor  of  any  last  will,  letters  of 
administration  with  the  will  annexed,  of  the  es- 
tate of  the  first  testator,  left  unadministered, 
must  be  issued. 

Letters  of  administration  with  will  annexed: 
Sec.  1356. 

§  1354.  Where  a  person  absent  from  the  State, 
or   a   minor,    is   named   executor— if  there   is   an- 


535  EXECUTORS,    ETC.  §§  1355,  1356 

other  executor  who  accepts  the  trust  and  qualifies 
—the  latter  may  have  letters  testamentary  and 
administer  the  estate  until  the  return  of  the  ab- 
sentee or  the  majority  of  the  minor,  who  may 
then  be  admitted  as  joint  executor.  If  there  is  no 
other  executor,  letters  of  administration  with  the 
will  annexed  must  be  granted;  but  the  court  may, 
in  its  discretion,  revoke  them  on  the  return  of  the 
absent  executor,  or  the  arrival  of  the  minor  at 
the  age  of  majority. 

§  1355.  When  all  the  executors  named  are  not 
appointed  by  the  court,  those  appointed  have  the 
same  authority  to  perform  all  acts  and  discharge 
the  trust,  required  by  the  will,  as  effectually  for 
every  purpose  as  if  all  were  appointed  and  should 
act  together;  where  there  are  two  executors  or  ad- 
ministrators, the  act  of  one  alone  shall  be  effect- 
ual, if  the  other  is  absent  from  the  State,  or  la- 
boring under  any  legal  disability  from  serving, 
or  If  he  has  given  his  coexecutor  or  coadministra- 
tor authority  in  writing,  to  act  for  both;  and 
where  there  are  more  than  two  executors  or  ad- 
ministrators, the  act  of  a  majority  is  valid. 

Remainder  of  executors  acting,  where  some  m- 
capacitated,  etc.:  Sec.  1425. 

Joint  authority:  Sec.  15. 

Authority  of  executors,  before  qualifying.  Civ. 
Code,  sec.  1373;  before  letters  revoked,  sec.  1428; 
powers,  etc.,  generally,  sec.  1581  et  seq.;  removals, 
etc.,  sec.  1436  et  seq.;  foreign  executor,  sec.  1913. 

Revocation  of  probate,  effect  of:   Sec.  1331. 

Removals  and  suspensions:  Sees.  1436  et  seq. 

§  1356.  Administrators  with  the  will  annexed 
^  have  tlie  same  authority  over  the  estates  which 
ai  f'xecutors  named  in  the  will  would  have,  and  their 
::   acts  are  as  effectual  for  all  puii^oses.    Their  let- 


§§  1360,  1361  EXECUTORS,    ETC.  536 

ters  must  be  signed  by  the  clerk  of  the  court,  and 
bear  the  seal  thereof. 
Executor  of  executor:   See  sec.   1353. 


ARTICLE  IT. 

FORM   OF   LETTERS. 

§  1360.     Form  of  letters  testamentary. 

§  1361.     Form  of  letters  of  administration  with  the  will  an- 
nexed, 
§  1362.     Form  of  letters  of  administration. 

§  1360.  Letters  testamentary  must  be  sub- 
stantially in  the  following  form:  State  of  Califor- 
nia, county,  or  city  and  county,  of .     The  last 

will  of  A.  B.,  deceased,  a  copy  of  which  is  hereto 
annexed,  having  been  proved  and  recorded  in  the 
Superior  Court  of  the  county,  or  city  and  county, 

of  ,  C.  D.,  who  is  named  therein  as  such,  is 

hereby  appointed  executor.  Witness,  G.  H.,  clerk 
of  the  Superior  Court  of  the  county,  or  city  and 

county,  of ,  with  the  seal  of  the  court  affixed, 

the day  of ,  A.  D.  18—.    (Seal.)    By  order 

of  the  court.  G.  H.,  Clerli.  [In  etfect  April  16, 
ISSO.] 

Seal,  required:  Sec.  83,  subd.  2;  of  courts,  gen- 
erally, sees.  1-17-153. 

§  1361.  Letters  of  administration,  with  the 
will  annexed,  must  be  substantially  in  the  follow- 
ing form:  State  of  California,  county,  or  city  nnd 

county,  of .    The  last  will  of  A.  B.,  deceased,  a 

copy  of  which  is  hereto  annexed,  having  been 
proved  and  recorded  in  the  Superior  Court  of  the 
county,  or  city  and  county,  of .  and  there  be- 
ing no  executor  named  in  the  will  (or  as  the  case 
may  bo),  C.  D.  is  hereby  appointed  administrator 
with  the  will  annexed.     Witness,  G.  H.,  Clerk  of 


537  EXECUTORS,    ETC.  §§  1362,  1365 

the   Superior   Court   of   the    county,    or   city   and 

county,  of ,  with  the  seal  of  the  court  affixed, 

the day  of ,  A.  D.  18—.     (Seal.)     By  order 

of  the  court.  G.  H.,  Clerk.  [In  effect  April  16, 
1880.] 

§  1362.  Letters  of  administration  must  be 
signed  by  the  cleric,  under  the  seal  of  the  court, 
and  substantially  in  the  following  form:    State  of 

California,  county,  or  city  and  county,  of  .  C. 

D.  is  hereby  appointed  administrator  of  the  estate 
of  A.  B.,  deceased.  (Seal.)  Witness,  G.  H.,  Clerk 
of  the  Superior  Court  of  the  county,  or  city  and 

county,  of  ,  with  the  seal  thereof  affixed,  the 

day  of ,  A.  D.  18—.    By  order  of  the  court. 

G.  H.,  Clerk.     [In  effect  April  16,  1880.] 


ARTICLE  III. 

LETTERS   OP  ADMINISTRATION,   TO  WHOM  AND   THE 
ORDER   IN   WHICH   THEY   ARE    GRANTED. 

§  1365.     Order  of  persons  entitled  to  administer.    Partner  not 

to  administer. 
§  1366.    Preference   of  persons  equally  entitled. 
§  1367.    In   discretion   of   Court   to     appoint     administrator, 

when. 
§  136S.     When  minor  entitled,  who  appointed  administrator. 
§  1369.     Who    are    incompetent    to    act    as    administrators. 
§  1370.     Married  woman   not  to   be   administratrix. 

§  1365.  Administration  of  the  estate  of  a  per- 
son dying  intestate  must  be  granted  to  some  one 
or  more  of  the  persons  hereinafter  mentioned,  the 
relatives  of  the  deceased  being  entitled  to  admin- 
ister only  when  they  are  entitled  to  succeed  to  his 
personal  estate,  or  some  portion  thereof;  and  they 
are,  respectively,  entitled  thereto  in  the  following 
order: 

1.    The  surviving  husband  or  wife,  or  some  com- 


§§  1366,  1367  EXECUTORS,    ETC.  53S 

petent  person  whom  he  or  she  may  request  to 
have  appointed; 

2.  The  children; 

3.  The  lather  or  mother; 

4.  The  brothers; 

5.  The  sisters; 

6.  The   grandchildren; 

7.  The  next  of  kin  entitled  to  share  in  the  dis- 
tribution of  the  estate; 

8.  The  public  administrator; 

9.  The  creditors; 

10.  Any  person   legally   competent. 

If  the  decedent  was  a  member  of  a  partnership 
at  the  time  of  his  decease,  the  surviving  partner 
must  in  no  case  be  appointed  administrator  of  hi& 
estate.  [Amendment  approved  April  1,  1878; 
Amendments  1877-S,  p.  111.  In  effect  sixty  days 
after  passage.] 

Surviving  husband  or  wife,  wife's  community 
property.   Civ.   Code,  sec.   1401. 

Public  administrators,  generally:  See  sees.  1726^ 
et  seq. 

Subd.  10.  Incompetent  persons:  Sees.  1360, 
1370. 

Itecommendation  by  one  entitled  to  administer: 
See  sec.  1379. 

§  1366.  Of  several  persons  claiming  and  equal- 
ly entitled  to  administer,  males  must  be  preferred 
to  femnles,  and  relatives  of  the  whole  to  those 
of  the  half  blood. 

§  1367.  When  there  are  several  persons  equal 
ly  entitled  to  the  administration,  the  court  nuiy 
grant  letters  to  one  or  more  of  them;  and  when 
a  creditor  is  claiming  letters,  the  court  may,  in 
its  discretion,  at  the  request  of  another  creditor, 


539  EXECUTORS.     ETC.  §§  1368-1370 

grant  letters  to  any  other  person  legally  compe- 
tent. 
See  sec.  1355,  ante. 

§  1368.  If  any  person  entitled  to  administra- 
,^_^tion  is  a  minor  or  an  incompetent  person,  letters 
0  must  be  granted  to  his  or  her  guardian,  or  any 
N  other  person  entitled  to  letters  of  administration, 
"^  in  the  discretion  of  the  court.  [Amendment  ap- 
^  proved  February  27,  1893;  Stats.  1893,  p.  52;  in 
^    effect  immediately.] 

s,)        Guardian  of  minor:   Sees.  372,  373,  and  notes; 
sees.  1747,  1759. 

§  1369.  No  person  is  competent  or  entitled  to 
serve  as  administrator  or  administratrix  who  is: 

1.  Under  the  age  of  majority; 

2.  Not  a  bona  fide  resident  of  the  State; 

3.  Convicted  of  an  infamous  crime; 

4.  Adjudged  by  the  court  incompetent  to  exe- 
cute the  duties  of  the  trust  by  reason  of  drunli- 
enness,  improvidence,  or  want  of  understanding 
or  integrity.  [Amendment  approved  April  1,  1878; 
Amendments  1877-8,  p.  112.  In  effect  sixty  days 
after  passage.] 

Revoking  letters:    See   sec.   1.383,   post. 

§  1370.  A  married  woman  may  be  appointed 
administratrix.  When  an  unmarried  woman  ap- 
pointed administratrix  marries,  her  authority  is 
not  thereby  extinguished.  [Amendment  approved 
February  24,  1891;  Stats.  1891,  p.  11.  In  effect  im- 
mediately.] 

Married  woman  as  executrix:  Sec.  1352. 


§§  1371-1373  EXECUTORS,    ETC.  «40 

ARTICLE  IV. 

PETITION  FOR  LETTERS,  AND  ACTION  THEREON. 

§  1371,    Applications,  how  made. 

§  1372.     When  granted. 

§  1373.    Notice  of  application. 

§  1374.    Contesting  application. 

§  1375.    Hearing  of  application. 

§  1376.     Evidence  of  notice. 

§  1377.    Grant  to  any  applicant. 

§  1378.  What  proofs  must  be  made  before  granting  letters 
of  administration. 

§  1379.  Letters  may  be  granted  to  others  than  those  en- 
titled. 

§  1371.  Petitions  for  letters  of  administration 
must  be  in  writing,  signed  by  the  applicant  or  his 
counsel,  and  filed  with  the  clerli  of  the  court,  stat- 
ing the  facts  essential  to  give  the  court  jurisdic- 
tion of  the  case,  and  when  known  to  the  appli- 
cant, he  must  state  the  names,  ages,  and  residence 
of  the  heirs  of  the  decedent,  and  the  value  and 
character  of  the  property.  If  the  jurisdictional 
facts  existed,  but  are  not  fully  set  forth  in  the 
petition,  and  are  afterward  proved  in  the  course 
of  administration,  the  decree  or  order  of  admin- 
istration and  subsequent  proceedings  are  not  void 
on  account  of  such  want  of  jurisdictional  aver- 
ment. 

Orders  and  decrees  need  not  recite  the  facts: 
Sec.  1704. 

§  1372.  Letters  of  administration  may  be 
granted  by  the  court  at  any  time  appointed  for 
the  hearing  of  the  application,  or  at  any  time  to 
wliich  the  hearing  is  continued  or  postponed. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  p.  79.     In  effect  April  16,  1880.] 

§  1373.  When  a  petition  praying  for  letters  of 
administration  is  filed,  the  clerlv  of  the  court  must 


541  EXECUTORS,     ETC.  §§  1374-1376 

set  the  petition  for  bearing'  by  tbe  court,  and  give 
notice  thereof  by  causing  notices  to  be  posted 
in  at  least  tln-ee  public  places  in  the  county,  one 
of  which  must  be  at  the  place  where  the  court 
is  held,  containing  the  name  of  the  decedent,  the 
name  of  the  applicant,  and  the  time  at  which  the 
application  will  be  heard.  Such  notice  must  be 
given  at  least  ten  days  before  the  hearing. 
[Amendment  approved  March  31,  1891;  Stats. 
1891,  p.  427.] 

Posting  notices:  Compare  sec.  1303. 

§  1374.  Any  person  interested  may  contest  the 
petition,  by  filing  written  opposition  thereto,  on 
the  ground  of  the  incompetency  of  the  applicant, 
or  may  assert  his  own  rights  to  the  administra- 
tion, and  pray  that  letters  be  issued  to  himself. 
In  the  latter  case  the  contestant  must  file  a  peti- 
tion, and  give  the  notice  required  for  an  original 
petition,  and  the  court  must  hear  the  two  peti- 
tions together. 

Incompetency  of  the  applicant:  Sec.  13G9. 
Assert  his  own  rights— persons  entitled  to  admin- 
ister: Sec.  1365. 

§  1375.  On  the  hearing,  it  being  first  proved 
J  that  notice  has  been  given  as  herein  required,  the 
V  court  must  hear  the  allegations  and  proofs  of  the 
2  parties,  and  order  the  issuing  of  letters  of  admin- 
jj  Istration  to  the  party  best  entitled  thereto. 

1^      Proof  of  notice:  Compare  sec.  1306. 
Conclusive 'evidence:  Sec.  1376. 
Hear  the  proofs,  etc.:  See  sec.  1378. 

§  1376.  An  entry  in  the  minutes  of  the  court, 
that  the  required  proof  was  made  and  no- 
tice given,  shall  be  conclusive  evidence  of  the  fact 
of  such  notice. 

Code  Civ.  Proc— 46. 


§§  1377-1379  EXECUTORS,     ETC.  542 

§  1377.  Letters  of  administration  must  be 
granted  to  any  applicant,  tliough  it  appears  tliat 
there  are  otlier  persons  having  better  rights  to 
the  administration,  when  such  persons  fail  to  ap- 
pear and  claim  the  issuing  of  letters  to  them- 
selves. 

Other  persons  having  better  rights— may  pro- 
cure revocation:  See  sees.  1388-13SG. 

§  1378.  Before  letters  of  administration  are 
granted  on  the  estate  of  any  person  who  is  repre- 
sented to  have  died  intestate,  the  fact  of  his  dy- 
ing intestate  must  be  proved  by  the  testimony  of 
the  applicant  or  others,  and  the  court  may  also 
examine  any  other  person  concerning  the  time, 
place,  and  manner  of  his  death,  the  place  of  his 
residence  at  the  time,  the  value  and  character  of 
his  property,  and  whether  or  not  the  decedent 
left  any  will,  and  may  compel  any  person  to  at- 
tend as  a  witness  for  that  purpose. 

Witness— compelling  attendance  of:  Sec.  198.1 
et  seq. 

§  1379.  Administration  may  be  granted  to  one 
or  more  competent  persons,  although  not  other- 
wise entitled  to  the  same,  at  the  written  request 
of  the  person  entitled,  filed  in  the  court.  When 
Ihe  person  entitled  is  a  non-resident  of  the  State, 
affidavits,  talven  ex  parte  before  any  ofticer  au- 
tliorized  by  the  laws  of  this  State  to  take  acknowl- 
edgments and  administer  oatlis  out  of  this  State, 
may  be  received  as  prima  facie  evidence  of  the 
identity  of  the  party,  if  free  from  suspicion,  and 
the  fact  is  established  to  the  satisfaction  of  the 
court.  [Amendment  approved  April  16,  1880: 
Amendments  1880,  p.  113.  In  efl'ect  xVpril  K;, 
1880.] 

Proof  of  identity.— Aflidavits,  sees.  2009-201.5; 
depositions  out  of  the  State,  sees.  2024-2028;  prima 
facie  evidence,  sec.  1833. 


543  EXECUTORS,     ETC.  §§  1383-1385 


ARTICLE  V. 

REVOCATION       OF       LETTERS       AND       PROCEEDINGS 
THEREFOR. 

§  1383.     Revocation    of   letters   of   administration. 
§  1384.    When  petition  filed,  citation  to  issue. 
§  1385.    Hearing  of  petition  for  revocation. 
§  1386.    Prior    rights    of    relatives    entitles    them    to    revoke 
prior  letters. 

§  1383.  When  letters  of  administration  have 
been  granted  to  any  other  person  than  the  surviv- 
ing husband  or  Avife,  child,  father,  mother,  bro- 
ther, or  sister  of  the  intestate,  any  one  of  them 
who  is  competent,  or  any  competent  person  at  the 
written  request  of  any  one  of  them,  may  obtain 
the  revocation  of  the  letters,  and  be  entitled  to 
the  administration,  by  presenting  to  the  court  a 
petition  praying  the  revocation,  and  that  letters 
of  administration  may  be  issued  to  him.  [Amend- 
ment approved  April  16,  1880;  Amendments  1880, 
p.  80.     In  effect  April  16,  1880.] 

Persons  incompetent:  Sees.  1369,  1370. 

Revocation:   See  sees.  1436-1440. 

And  see  sec.  1386. 

§  1384.  When  such  petition  is  filed,  the  clerk 
must,  in  addition  to  the  notice  provided  in  sec- 
tion thirteen  hundred  and  seventy-three,  issue  a 
citation  to  the  administrator  to  appear  and  an- 
swer the  same  at  the  time  appointed  for  the  hear- 
ing. [Amendment  a])proved  March  24,  1874; 
Amendments  1873-4,  p.  359.  In  effect  July  1, 
1874.] 

Citation— generally:   Sees.  1707-1711. 

§  1385.  At  the  time  appointed,  the  citation 
having  been  duly  served  and  returned,  the  court 


§  1386         EXECUTORS    AND    ADMINISTRATORS  544 

must  proceed  to  hear  the  allegations  and  proofs 
of  the  parties;  and  if  the  right  of  the  applicant  is 
established,  and  he  is  competent,  letters  of  admin- 
istration must  be  granted  to  him,  and  the  letters 
of  the  former  administrator  revoked, 

§  1386.  The  surviving  husband  or  wife,  when 
letters  of  administration  have  been  granted  to  a 
child,  father,  brother,  or  sister  of  the  intestate;  or 
any  of  such  relatives,  when  letters  have  been 
granted  to  any  other  of  them,  may  assert  his  prior 
right,  and  obtain  letters  of  administration,  and 
have  the  letters  before  granted  revolted  in  the 
manner  prescribed  in  the  three  preceding  sections. 


545  EXECUTORS    AND    ADMINISTRATORS.        §  1387 


AKTICLE  VI. 

OATHS    AND    BONDS    OF    EXECUTORS    AND    ADMINIS- 
TRATORS,   ETC. 

§  1387.  Administrator  or  executor  to  take  oath.  Letters 
and  bond  to  be  recorded. 

§  1388.    Bond  of  administrator.s,   form  and  requirements  of. 

§  1389.     Additional    bonds,    when    required. 

§  1390.     Condition  of  bonds. 

§  3^91.  Each,  or  more  than  one  administrator,  to  give  sep- 
arate bonds. 

§  1392.     Several   recoveries  may  be  had  on  same  bond. 

§  1393.  Bonds,  and  justification  of  sureties  on.  Must  be  ap- 
proved. 

§  1394.  Citation  and  requirements  of  judge  on  deficient 
bond.     Additional  security. 

§  1395.     Right  ceases,   w^hen. 

§  1396.     When  bond  may  be  dispensed  with. 

§  1397.  Petition  showing  failing  sureties  and  asking  for 
further  bonds. 

§  1398.  Citation  to  executor,  etc.,  to  show  cause  against 
such  application. 

§  1399.     Further  security  may  be  ordered. 

§  1400.     Neglecting   to    obey   order. 

§  1401.     Suspending  powers  of  executor,  etc. 

§  1402.  Further  security  ordered  without  application  of  par- 
ty in  interest. 

§  1403.     Release  of  sureties. 

§  1404.     New  sureties. 

§  1405.     Neglect  to  give  new  sureties  forfeits  letters. 

§  1406.     Application  to  be  determined  out  of  term  time. 

§  1407.     Liability  on  bond. 

§  1387.  Before  letters  testamentary  or  of  ad- 
ministration are  issued  to  the  executor  or  admin- 
istrator, lie  must  talve  and  subscribe  an  oath  be- 
fore some  officer  authorized  to  administer  oaths, 
that  he  will  perform,  according  to  law,  the  du- 
ties of  executor  or  administrator,  whicli  oath  must 
be  attaclied  to  the  letters.  All  letters  testament- 
ary and  of  administration  issued  to,  and  all  bonds 
executed  by,  executors  or  administrators,  with  the 
affidavits  and  certificates  thereon,  must  be  forth- 
with recorded  by  the  clerk  of  the  court  having  jur- 


§§  1388,  1389  EXECUTORS,    ETC.  546 

isdiction  of  the  estates,  iii  books  to  be  kept  by 
bim  in  his  office  for  that  purpose. 

§  1388.  Every  person  to  whom  letters  testa- 
mentary or  of  administration  are  directed  to  issue, 
must,  before  receiving  them,  execute  a  bond  to 
the  State  of  California,  with  two  or  more  sufficient 
sureties,  to  be  approved  liy  the  superior  court,  or 
a  judge  thereof.  In  form,  the  bond  must  be  joint 
and  several,  and  the  penalty  must  not  be  less 
than  twice  the  value  of  the  personal  property, 
and  twice  the  probable  value  of  the  annual  rents, 
profits,  and  issues  of  real  property  belonging  to 
the  estate,  which  values  must  be  ascertained  by 
the  superior  court,  or  a  judge  thereof,  by  examin- 
ing on  oath  the  party  applying,  and  any  other 
persons.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  80.    In  effect  April  16,  1880.] 

Sureties:  Sees.  1393,  1394,  1397-1400,  1403,  1404, 
1407. 

Approved  by  judge,  at  chambers:  Sec.  166. 

Bond— condition  of,  sec.  1390;  separate,  when 
sec.  1391;  recovery  on,  sees.  1392,  1407;  not  re- 
quired, when,  sec.  139G;  further  security,  sees. 
1389,  1394-1402;  stands  as  undertaking  on  appeal, 
sec.  970. 

§  1389.  The  superior  court,  or  a  judge  thereof, 
must  require  an  additional  bond  whenever  the 
sale  of  any  real  estate  belonging  to  an  estate  is 
ordered;  but  no  such  additional  bond  must  be  re- 
quired when  it  satisfactorily  appears  to  the  court 
that  the  penalty  of  the  bond  given  before  receiv- 
ing letters,  or  of  any  bond  given  in  place  thereof, 
is  equal  to  twice  the  value  of  the  personal  property 
renin ining  in  or  tliat  will  come  into  the  possession 
of  tlie  executor  or  administrator,  including  the 
annual  rents,  profits,  and  issues  of  real  estate,  and 
twice  the  probable  amount  to  be  realized  on  the 


547  EXECUTORS,    ETC.  §§  1390-1393 

sale  of  the  real  estate  ordered  to  be  sold.  [Amend- 
ment approved  April  IG,  1880;  Amendments  1880, 
p.  80.    In  effect  April  16,  1880.] 

Additional  bond  may  be  required  of  public  ad- 
ministrator: Sec.  1727. 

Decree  settling  account  binds  surety:  See  sees. 
1637,  1638,  post. 

§  1390.  The  bond  must  be  conditioned  that  the 
executor  or  administrator  shall  faithfully  execute 
the  duties  of  the  trust  according  to  law. 

Duties  of  the  trustee:  See  sec.  1580  et  seq. 

§  1391.  When  two  or  more  persons  are  ap- 
pointed executors  or  administrators,  the  superior 
court,  or  a  judge  thereof,  must  require  and  take 
a  separate  bond  from  each  of  them.  [Amend- 
ment approved  April  16,  1880;  Amendments  1880, 
p.  80.     In  effect  April  16,  1880.] 

§  1392.  The  bond  shall  not  be  void  upon  the 
first  recovery,  but  may  be  sued  and  recovered 
upon  from  time  to  time,  by  any  person  aggrieved, 
in  his  own  name,  until  the  whole  penalty  is  ex- 
hausted. 

Sued  upon,  joining  defendants:  Sec.  383. 

In  his  own  name,  party  beneficially  interested: 
Sec.  367. 

Penalty:  Sees.  1388,  1399. 

Kind  of  money,  payable  under  bond:  Sec.  1407. 

§  1393.  In  all  cases  where  bonds  or  un- 
dertakings are  required  to  be  given,  under  this 
title,  the  sureties  must  justify  thereon  in  the  same 
manner  and  in  like  amounts  as  required  by  sec- 
tion ten  hundred  and  fifty-seven  of  this  Code,  and 
the  certificate  thereof  must  be  attached  to  and 
filed  and  recorded  with  the  bond  or  undertak- 
ing.   All  such  bonds  and  undertakings  must  be  ap- 


§§  1394,  1395  EXECUTORS,     ETC.  548 

proved  by  a  judge  of  the  superior  court  before  be- 
ing filed  or  recorded.  [Amendment  approved 
April  10,  1880;  Amendments  1880,  p.  80.  In  effect 
April  16,  1880.] 

Approved  by  judge,  at  chambers:  Sec.  166. 

Examination  of  sureties,  when  qualifications 
questioned:  Sec.  1394. 

§  1394.  Before  the  judge  approves  any  bond 
required  under  this  title,  and  after  its  approval, 
he  may,  of  his  own  motion,  or  upon  the  motion  of 
any  person  interested  in  the  estate,  supported  by 
affidavit  that  the  sureties,  or  some  one  or  more 
of  them,  are  not  worth  as  much  as  they  have  jus- 
tified to,  order  a  citation  to  issue  requiring  such 
sureties  to  appear  before  him  at  a  designated  time 
and  place,  to  be  examined  touching  tlieir  proper- 
ty and  its  value;  and  the  judge  must,  at  the  same 
time,  cause  a  notice  to  be  issued  to  the  executor 
or  administrator  requiring  his  appearance  on  the 
return  of  the  citation;  and  on  its  return  he  may 
examine  the  sureties  and  such  witnesses  as  may 
be  produced,  touching  tlie  property  of  the  sureties 
and  its  value;  and  if,  upon  such  examination,  he 
is  satisfied  that  the  bond  is  insufficient,  he  must 
require  sufficient  additional  security.  [Amend- 
ment approved  April  16,  1880;  Amendments  188j, 
p.  81.     In  effect  April  16,  1880.] 

Citations:  Sees.  1707,  1711. 

Additional  security,  effect  of  failure  to  give,  in 
time:  Sec.  1395. 

§  1395.  If  sufficient  security  is  not  given  with- 
in the  time  fixed  by  the  judge's  order,  the  right  of 
such  executor  or  administrator  to  the  administra- 
tion shall  cease,  and  tlie  person  next  entitled  to 
the  administration  on  the  estate,  who  will  exe- 
cute a  sufficient  bond,  must  be  appointed  to  the 
administration. 


549  EXECUTORS,    ETC.  §§  1393-1399 

§  1396.  When  it  is  expressly  provided  in  the 
will  that  no  bond  shall  be  required  of  the  exec- 
utor, letters  testamentary  may  issue,  and  sales  of 
real  estate  be  made  and  confirmed  without  any 
bond,  unless  the  court,  for  good  cause,  require  one 
to  be  executed;  but  the  executor  may  at  any  time 
afterward,  if  it  appear  from  any  cause  necessary 
or  proper,  be  required  to  file  a  bond,  as  in  other 
cases.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  360.  In  effect  July  1, 
1874.] 

§  1397.  Any  person  interested  in  an  estate 
may,  by  verified  petition,  represent  to  the  superior 
court,  or  a  judge  thereof,  that  the  sureties  of  the 
executor  or  administrator  thereof  have  become,  or 
are  becoming,  insolvent,  or  that  they  have  re- 
moved, or  are  about  to  remove,  from  the  State,  or 
that  from  any  other  cause  the  bond  is  insutti- 
cient,  and  aslv  that  further  security  be  required. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  p.  81.    In  effect  April  16,  1880.] 

Ask  further  security,  court  may :  Sec.  1402. 

§  1398.  If  the  court,  or  a  judge  thereof,  is  sat- 
isfied that  the  matter  requires  investigation,  a  ci- 
tation must  be  issued  to  the  executor  or  adminis- 
trator, requiring  him  to  appear,  at  a  time  and 
place  to  be  therein  specified,  to  show  cause  why 
he  should  not  give  further  security.  The  citation 
must  be  served  personally  on  the  executor  or  ad- 
ministrator, at  least  five  days  before  the  return 
day.  If  he  has  absconded,  or  "cannot  be  found, 
it  may  be  served  by  leaving  a  copy  of  it  at  his 

^  place  of  residence,  or  b.v  such  publication  as  the 
court  or  a  judge  thereof  may     order.       [Amend- 

;     ment  approved  April  16.  1880;  Amendments  1880, 

\    p.  81.     In  effect  April  16,  1880.] 

^-§   1399.    On   the   return   of   the   citation,   or   at 
/such   other   time   as   the   judge   may   appoint,    he 


§§  1400-1403  EXECUTORS,    ETC.  550 

must  proceed  to  hear  the  proofs  and  allegations 
of  the  parties.  If  it  satisfactorily  appears  that 
the  security  is  from  any  cause  insufficient,  he  may 
make  an  order  requiring  the  executor  or  admin- 
istrator to  give  furtlier  security,  or  to  file  a  new 
bond  in  the  usual  form,  within  a  reasonable  time, 
not  less  than  five  days. 

§  1400.  If  the  executor  or  administrator  neg- 
lects to  comply  with  the  order  within  the  time 
prescribed,  the  judge  must,  by  order,  revoke  his 
letters,  and  his  authority  must  tliereupon  cease. 

§  1401.  When  a  petition  is  presented,  praying 
that  an  executor  or  administrator  be  required  to 
give  further  security,  or  to  give  bond,  where  by 
the  terms  of  the  will  no  bond  was  originally  re- 
quired, and  it  is  alleged  on  oath  that  the  execu- 
tor or  administrator  is  wasting  the  property  of 
the  estate,  the  judge  may,  by  order,  suspend  his 
poM^ers  until  the  matter  can  be  heard  and  deter- 
mined. 

§  1402.  When  it  comes  to  his  knowledge  that 
the  bond  of  any  executor  or  administrator  is 
from  any  cause  insufficient,  the  judge,  without 
any  application,  must  cause  him  to  be  cited  to  ap- 
pear and  show  cause  why  he  should  not  give  fur- 
ther security,  and  must  proceed  thereon  as  upon 
the  application  of  any  person  interested.  [Amend- 
ment approved  April  10,  1880:  Amendments  1880, 
p.  82.     In  effect  April  16,  1880.] 

§  1403.  When  a  surety  of  any  executor  or  ad- 
ministrator desires  to  be  released  from  responsi- 
bility on  account  of  future  acts,  he  may  make  ap- 
plication to  the  superior  court,  or  a  judge  thereof, 
for  relief.  The  court  or  judge  must  cause  a  cita- 
tion to  the  executor  or  administrator  to  be  issued, 
and  served  personally,  requiring  him  to  appear  at 


551  EXECUTORS,     ETC.  §§  1404-1407 

a  time  and  place  to  be  therein  specified,  and  to 
give  other  security.  If  he  has  absconded,  left,  or 
removed  from  the  State,  or  if  he  cannot  be  found, 
after  due  diligence  and  inquiry,  service  may  be 
made  as  provided  in  section  one  thousand  three 
hundred  and  ninety-eight.  [Amendment  approved 
April  IG,  1880;  Amendments  1880,  p.  82.  In  ef- 
fect April  10,  1880.] 

§  1404.  If  new  sureties  be  given  to  the  satis- 
y  faction  of  the  judge,  he  may  thereupon  make  an 
,^  order  that  the  sureties  who  applied  for  relief  shall 
<  not  be  liable  on  their  bond  for  any  subsequent  act, 
^  default,  or  misconduct  of  the  executor  or  ad- 
^    ministrator. 

^  §  1405.  If  the  executor  or  administrator  neg- 
lects or  refuses  to  give  new  sureties,  to  the  sat- 
isfaction of  the  judge,  on  the  return  of  the  cita- 
_  tion,  or  within  such  reasonable  time  as  the  judge 
v^  shall  allow,  unless  the  surety  mnking  the  applica- 
::;  tion  shall  consent  to  a  longer  extension  of  time, 
V  the  court  or  judge  must,  by  order,  revoke  his  let- 
:     ters. 

§  1406.    The   applications  authorized     by     the 

nine  preceding  sections  of  this  chapter  may  be 

heard  and  determined  at  any     time.     All     orders 

^made  therein  must  be  entered  upon  the  minutes 

V.  of  the  court.     [Amendment     approved     April  16, 

^  1880;  Amendments  1880,  p.  82.    In  effect  April  16, 

'<1880.] 

"^  §  1407.  The  liability  of  principal  and  sureties 
upon  the  bond  of  any  executor,  administrator,  or 
guardian,  is  in  all  cases  to  pay  in  the  kind  of 
money  or  currency  in  which  the  principal  is  legal- 
ly liable.  [New  section  approved  March  24,  1874; 
Amendments  1873-4,  p.  361.  In  effect  July  1, 
1874.] 


§§  1411,  1412  EXECUTORS,     ETC. 


ARTICLE  YII. 

SPECIAL  ADMINISTRATORS  AND  THEIR  POWERS  AND 
DUTIES. 

§  1411.  Special  administrator,  when  appointed. 

§  1412.  Special  letters  may  be  issued  out  of  term  time. 

§  1413.  Preference   given   to  persons   entitled   to   letters. 

§  1414.  Special  administrator  to  give  bond  and  take  oath. 

§  1415.  Duties  of  special  administrator. 

§  1413.  "When  letters  testamentary  or  of  administration  are 

granted,  special  administrator's  powers  cease. 

§  1417.  Special  administrator  to  render  account. 

§  1411.  When  there  is  delay  in  granting  let- 
ters testamentary  or  of  administration  from  any 
cause,  or  when  such  letters  are  granted  irregular- 
ly, or  no  suftieient  bond  is  tiled  as  required,  or 
when  no  application  is  made  for  such  letters,  or 
when  an  executor  or  administrator  dies,  or  is  sus- 
pended, or  removed,  the  superior  court,  or  a  judge 
thereof,  must  appoint  a  special  administrator  to 
collect  and  tal^e  charge  of  the  estate  of  the  deced- 
ent in  whatever  county  or  counties  the  same  may 
be  found,  and  to  exercise  such  other  powers  as 
may  be  necessary  for  the  preservation  of  the  es- 
tate; or  he  may  direct  the  public  administrator  of 
his  county  to  talve  charge  of  the  estate.  [Amend- 
ment approved  April  16,  1880;  Amendments  1880, 
p.  83.    In  effect  April  16,  1880.] 

§  1412.  The  appointment  may  be  made  at  any 
time,  and  Avithout  notice,  and  must  be  made  by 
entry  upon  the  minutes  of  the  court,  specifying 
llie  powers  to  be  exercised  by  the  administrator. 
Upon  such  order  being  entered,  and  after  the 
person  appointed  has  given  bond,  the  clerk  must 
issue  letters  of  administration  to  such  person  in 
conformity  witli  the  order.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  p.  82. 
In  effect  April  16.  1880.] 

Oath  and  bond:  See  sec.  1414. 


553  EXECUTORS,     ETC.  §§  1413-1415 

§  1413.  lu  making  the  appointment  of  a  special 
administrator,  the  court  or  judge  must  give  pref- 
erence to  the  i)erson  entitled  to  letters  testamen- 
taiT  or  of  administration,  but  no  appeal  must  be 
allowed  from  the  appointment.  [Amendment  ap- 
l)roved  April  10,  1880;  Amendments  1880,  p.  82. 
In  effect  April  16,  1880.] 

Persons  entitled  to  letters:  Sec.  1365  et  seq. 

§  1414.  Before  any  letters  issue  to  any  special 
administrator,  he  must  give  bond  in  such  sum 
as  the  court  or  judge  may  direct,  with  sureties 
to  the  satisfaction  of  the  court  or  judge,  condi- 
tioned for  the  faithful  performance  of  his  duties; 
and  he  must  take  the  usual  oath,  and  have  the 
same  indorsed  on  his  letters.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  p.  82. 
In  effect  April  16,  1880.] 

Oath  and  bond  of  administrator,  etc.:  See  sees. 
1387-1407. 

§   1415.    The  special  administrator  must  collect 
and  preserve  for  the  executor  or  administrator, 
all  the  goods,  chattels,  debts,  and  effects  of  the 
decedent;   all  incomes,   rents,   issues,   and  profits, 
claims,  and  demands  of  the  estate';  must  take  the 
charge  and  management  of,  enter  upon  and  pre- 
^serve  from  damage,  waste,  and  injury,  the  real 
^^  estate;  and  for  any  such  and  all  necessary  pur- 
^  poses  may  commence     and  maintain     or     defend 
J  suits  and  other  legal  proceedings  as  an  adminis- 
T^  trator;  he  may  sell  sucli  perishable  property  as 
^  the  court  may  order  to  be  sold,  and  exercise  such 
^   other  poAvers  as  are  conferred  upon  him  by  his  ap- 
;^  pointment,  but  in  no  case  is  he  liable  to  an  action 
o   by  any  creditor  on  a  claim  against  the  decedent. 
[Amendment  approved  April     16.     1880;  Amend- 
ments 1880,  p.  83.     In  effect  April  16,  1880.] 
Code  Civ.  Proc— 47. 


§§  1416,  1423  EXECUTORS,     ETC.  554 

§  1416.  When  letters  testamentary  or  of  admin- 
istration on  the  estate  of  the  decedent  have  been 
granted,  the  powers  of  the  special  administrator 
cease,  and  lie  must  forthwith  deliver  to  the  ex- 
ecutor or  administrator  all  the  property  and  ef- 
fects of  the  decedent  in  his  hands;  and  the  ex- 
ecutor or  administrator  may  prosecute  to  final 
judgment  any  suit  commenced  by  the  special  ad- 
ministrator. 

§  1417.  The  special  administrator  must  render 
an  account,  on  oath,  of  his  proceedings  in  a  like 
manner  as  other  administrators  are  required  to 
do. 

Account  of  administrator,  etc. :  Sec.  1622  et  seq. 


AIITICLE  VIII. 

WILLS  FOUND  AFTER  LETTERS  OF  ADMINISTRATION 
GRANTED,    AND    MISCELLANEOUS    PROVISIONS. 

§  1423.  On  proof  of  will,  after  grant  of  letters  of  adminis- 
tration, letters  revoked. 

§  1424.    Power  of  executor  in  such  a  case. 

§  1425.  Remaining  administrator  or  executor  to  continue 
when   his_  colleagues   are   disqualified. 

§  1426.    Who  to  act  when  all  acting  are  incompetent. 

§  1427.  Executor  or  administrator  may  resign,  when.  Court 
to  appoint  successor.     Liabi'ity  of  outgoer. 

§  1428.  All  arts  of  executor,  etc.,  valid  until  his  power  is  re- 
voked. 

§  1429.     Transcript  of  court  minutes  to  be  evidence. 

§  1423.  If,  after  granting  letters  of  administra- 
tion on  the  ground  of  intestacy,  a  will  of  the  dece- 
dent is  duly  proved  and  allowed  by  the  court,  the 
letters  of  administration  must  be  revoked,  and  the 
])OAVcr  of  the  administrator  ceases,  and  he  must 
render  an  account  of  his  administration  within 
such  time  as  tlie  court  shall  direct. 

Account  of  administration:  Sec.  022  et  seq. 


555  EXECUTORS.     ETC.  §§  1424-1426 

§  1424.  lu  such  ease,  the  executor  or  the  ad- 
ministrator with  the  will  annexed  is  entitled  to  de- 
mand, sue  for,  recover  and  collect  all  the  rights, 
goods,  chattels,  debts  and  effects,  of  the  deced- 
ent remaining  unadministered,  and  may  prosecute 
to  final  judgment  any  suit  commenced  by  the  ad- 
ministrator before  the  revocation  of  his  letters  of 
administration. 

Inventory  and  collection  of  decedent's  effects: 
Sees.  1443-1453. 

§  1425.  In  case  any  one  of  several  executors 
or  administrators  to  whom  letters  are  granted, 
dies,  becomes  lunatic,  is  convicted  of  an  infamous 
crime,  or  otherwise  becomes  incapable  of  execut- 
ing the  trust,  or  in  case  the  letters  testamentary 
or  of  administration  are  revoked  or  annulled,  with 
respect  to  any  one  executor  or  administrator,  the 
remaining  executor  or  administrator  must  pro- 
ceed to  complete  the  execution  of  the  will  or  ad- 
ministration. 

§  1426.  If  all  such  executors  or  administra- 
tors die  or  become  incapable,  or  the  power  and 
authority  of  all  of  them  is  revolved,  the  court  must 
issue  letters  of  administration,  with  the  will  an- 
nexed or  otherwise,  to  the  widow  or  next  of  kin, 
or  others,  in  the  same  order  and  manner  as  is  di- 
rected in  relation  to  original  letters  of  administra- 
tion. The  administrators  so  appointed  must  give 
bond  in  the  like  penalty,  with  like  sureties  and 
conditions,  as  hereinbefore  required  of  administra- 
tors, and  shall  have  the  like  power  and  authority. 
[Amendment,  approved  April  16,  1880;  Amend- 
ments, 1880,. p.  83.    In  effect  April  16,  1880.] 

Letters  of  administration — order  and  manner  of 
granting,  see.  1365  et  seq.;  with  will  annexed,  see. 
1356. 

Oath  and  bond:  Sees.  1387-1407. 

Power  and  authority:    See.  1581  et  seq. 


§§  1427-1429  EXECUTORS,     ETC.  556 

§  1427.  Any  executor  or  administrator  may,  at 
any  time,  by  writing,  filed  in  tlie  Superior  Court, 
resign  his  appointment,  liaving  first  settled  liis 
accounts  and  delivered  up  all  the  estate  to  the  per- 
son whom  the  court  shall  appoint  to  receive  the 
same.  If,  however,  by  reason  of  any  delays  in 
such  settlement  and  delivering  up  of  the  estate,  or 
for  any  other  cause,  the  circumstances  of  the  es- 
tate or  the  rights  of  those  interested  therein  re- 
quire it,  the  court  may,  at  any  time  before  settle- 
ment of  accounts  and  delivering  up  of  the  estate 
is  completed,  revoke  the  letters  of  such  executor  or 
administrator,  and  appoint  in  his  stead  an  admin- 
istrator, either  special  or  general,  in  the  same 
manner  as  is  directed  in  relation  to  original  letters 
of  administration.  The  liability  of  the  outgoing 
executor  or  administrator,  or  of  the  sureties  on  his 
bond,  shall  not  be  in  any  manner  discharged,  re- 
leased, or  affected  by  such  appointment  or  resig- 
nation. [Amendment,  approved  April  16,  1880; 
Amendments  1880,  p.  83.    In  effect  April  16,  1880.] 

§  1428.  All  acts  of  an  executor  or  administrator 
as  such,  before  the  revocation  of  his  letters  tes- 
tamentary or  of  administration,  are  as  valid  to  all 
intents  and  purposes  as  if  such  executor  or  ad- 
ministrator had  continued  lawfully  to  execute  the 
duties  of  his  trust. 

§  1429.  A  transcript  from  the  minutes  of  the 
court,  showing  the  appointment  of  any  person  as 
executor  or  administrator,  together  with  the  cer- 
tificate of  the  clerk  under  his  hand  and  the  seal 
of  his  court,  that  such  person  has  given  bond  and 
been  qualified,  and  that  letters  testamentary  or  of 
administration  have  been  issued  to  him  and  have 
not  been  revoked  shall  have  the  same  effect  in 
evidence  as  the  letters  themselves. 

Letters  and  bond  recored:   Sec.  1387. 


EXECUTORS,    ETC.  §§  1430,  1431 


AKTICLE   IX. 

DISQUALIFICATION   OF  JUDGES   AND   TRANSFERS   OF 
ADMINISTRATIONS. 

§  1430.    When  judge  not  to  act. 

§  1431,  Judge  being  disqualified,  proceedings  to  be  trans- 
ferred,  and  where. 

§  1432.  Transfer  not  to  change  right  to  administer.  Re- 
transfer,  how  made. 

§  1433.     When  proceedings  to  be  returned  to  original  court. 

§  1430.  No  will  shall  be  admitted  to  probate, 
or  letters  testamentary  or  of  administration  grant- 
ed , before  any  judge  who  is  interested  as  next  of 
kin  to  the  decedent,  or  as  a  legatee  or  devisee 
under  the  will,  or  Avhen  he  is  named  as  executor 
or  trustee  in  the  will,  or  is  a  witness  thereto,  or 
is  in  any  other  manner  interested  or  disqualified 
from  acting.  [Amendment,  approved  April  lO, 
1880;  Amendments  1880,  83.  In  effect  April  16, 
1880.] 

§  1431.  When  a  petition  is  filed  in  the  superior 
court,  praying  for  admission  to  probate  of  a  will, 
or  for  granting  letters  testamentary  or  of  admin- 
istration, or  when  proceedings  are  pending  in  the 
superior  court  for  the  settlement  of  an  estate,  and 
tliere  is  no  judge  of  said  court  qualified  to  act, 
an  order  must  be  made  transferring  the  proceed- 
ings to  the  superior  court  of  an  adjoining  county, 
and  the  clerk  of  the  court  ordering  the  transfer 
must  transmit  to  the  clerk  of  the  court  to 
which  the  proceedings  are  ordered  to  be  trans- 
ferred a  certified  copy  of  the  order  and  all 
papers  on  file  in  his  office  in  the  proceedings;  and 
thereafter  the  court  to  which  the  proceeding  is 
transferred  shall  exercise  the  same  authority  and 
jurisdiction  over  the  estate,  and  all  matters  re- 
lating to  the  administration  thereof,  as  if  it  had 


§§  1432,  1433  EXECUTORS,    ETC.  55S 

original  jurisdiction  of  the  estate;  provided,  tliere 
sliall  not  be  any  necessity  for  transferring  sucli 
proceedings,  or  any  of  tliem,  wlien  a  judge  of 
some  otlier  county  qualified  to  act  attends  at  the 
request  of  the  judge  of  the  county  where  such 
proceedings  are  pending,  to  hold  court,  to  con- 
duct and  to  try  such  proceedings;  and  such  judge, 
when  so  called  upon  to  preside,  shall  exercise  ju- 
risdiction over  any  proceeding  in  the  estate  as 
is  exercised  in  other  cases  under  lil^e  circumstan- 
ces. [Amendment,  approved  March  31,  1891; 
Stats.  1891,  435.] 

§  1432.  The  transfer  of  a  proceeding  from  one 
court  to  another  as  provided  for  in  the  preceding 
section,  shall  not  affect  the  right  of  any  person 
to  letters  testamentary  or  of  administration  on 
the  estate  transferred,  but  the  same  persons  are 
entitled  to  letters  testamentary  or  of  administra- 
tion on  the  estate,  in  the  order  hereinafter  pro- 
vided. If,  before  the  administration  is  closed  of 
any  estate  so  transferred  as  herein  provided,  an- 
other person  is  elected  or  appointed,  and  qualified 
as  judge  of  the  court  wherein  such  proceeding  was 
originally  commenced,  who  is  not  disqualified  to 
act  in  the  settlement  of  the  estate,  and  the  causes 
for  which  the  proceeding  was  transferred  no  long- 
er exist,  any  person  interested  in  the  estate  may 
have  the  proceeding  returned  to  the  court  from 
which  it  was  originally  transferred,  by  filing  a 
petition  setting  forth  these  facts,  and  moving  the 
court  therefor.  [Amendment,  approved  April  16, 
1880;  Amendments  1880,  84.  In  effect  April  16, 
1880.] 

§  1433.  On  hearing  the  motion,  if  the  facts  re- 
quired by  the  preceding  section  to  be  set  out  in 
the  petition  are  satisfactorily  shown,  and  it  fur- 
ther appears  to  the  court  that  the  convenience  of 
the  parties  interested  would  be  promoted  by  such 


559  EXECUTORS    AND    ADMINISTRATORS.        §  1436 

change,  the  judge  must  make  an  order  transfer- 
ring the  proceeding  back  to  the  court  where  it  was 
originallj'  commenced;  and  the  clerk  of  the  court 
ordering  the  transfer  must  transmit  to  the  clerk 
of  the  court  in  which  the  proceeding  was  origin- 
ally commenced,  a  certified  copy  of  the  order,  and 
all  the  original  papers  on  lile  in  his  office  in  the 
proceeding;  and  the  court  where  the  proceeding 
was  originally  commenced  shall  thereafter  have 
jurisdiction  and  power  to  make  all  necessary  or- 
ders and  decrees  to  close  up  the  administration  or 
the  estate.  [Amendment,  approved  April  16,  1880; 
Amendments  1880,  84.    In  effect  April  16,  1880.] 

ARTICLE  X. 

REMOVALS  AND   SUSPENSIONS   IN   CERTAIN   CASES. 

§  1436.     Suspension  of  powers  of  executor. 

§  1437.    Executor  to  have  notice  of  his  suspension,  and  to  be 

cited  to   appear. 
§  1438.    Any  party  interested  may  appear  on  hearing. 
§  1439.    Notice  to  absconding  executors  and  administrators. 
§  1440.     May  compel  attendance. 

§  1436.    Whenever  a  judge  of  a  Superior  Court 
has  reason  to  believe,  from  his  own  knowledge,  or 
from  credible  information,  that  any  executor  or 
administrator  has  wasted,  embezzled,  or  misman- 
aged, or  is  about  to  waste  or  embezzle  the  prop- 
)  erty  of  the  estate  committed  to  his  charge,  or  has 
^  committed  or  is  about  to  commit  a  fraud  upon 
'^  the  estate,  or  is  incompetent  to  act,  or  has  perma- 
^  nently  removed  from  the  State,  or  has  wrongfully 
V  neglected  the  estate,  or  has  long  neglected  to  per- 
T>    form  any  act  as  such  executor  or  administrator. 
X  he  must,  by  an  order  entered  upon  the  minutes  of 
o  the  court,  suspend  the  powers  of  such  executor  or 
administrator,  until    the    matter    is    investigated. 
[Amendment    approved    April    16,    1880;    Amend- 
ments 1880,  84.    In  effect  April  16th,  1880.] 


§§  1437-1440  EXECUTORS.     ETC.  560 

Misconduct  of  executor— as  to  inventory:  Sec. 
1450;  as  to  exhibit  and  account:  Sees.  1626,  1627, 
1630. 

Suspension  of  executor,  etc.— done  at  cliambers: 
Sec.  166. 

llemoval  of  executor:  See  ante,  sec.  1383. 

§  1437.  Wlien  sucli  suspension  is  made,  notice 
thereof  must  be  given  to  the  executor  or  adminis- 
trator, and  he  must  be  cited  to  appear  and  show 
cause  Avhy  his  letters  should  not  be  revoked.  If 
he  fail  to  appear  in  obedience  to  the  citation,  or, 
if  appearing-,  the  court  is  satisfied  that  there  exists 
cause  for  his  removal,  his  letters  must  be  revoked, 
and  letters  of  administration  granted  anew,  as 
the  case  may  require. 

§  1438.  At  the  hearing,  any  person  interested 
in  the  estate  may  appear  and  file  liis  allegations 
in  writing,  showing  that  the  executor  or  adminis- 
trator should  be  removed;  to  which  the  executor 
or  administrator  may  demur  or  answer,  as  herein- 
before provided.  The  issues  raised  must  be  heard 
and  determined  hj  the  court. 

§  1439.  If  the  executor  or  administrator  has 
absconded  or  conceals  himself,  or  has  removed  or 
absented  himself  from  the  State,  notice  may  be 
given  him  of  the  pendency  of  the  proceedings  by 
publication,  in  such  manner  as  the  court  may  di- 
rect, and  tlie  court  may  proceed  upon  such  notice 
as  if  the  citation  had  been  personally  served. 

Compare:    Sec.  1630. 

§  1440.  In  the  proceedings  authorized  by  the 
preceding  sections  of  this  article,  for  the  removal 
of  an  executor  or  administrator,  the  court  may 
compel  his  attendance  by  attachment,  and  may 
compel  him  to  answer  questions,  on  oatli,  touch- 


561  EFFECTS    OF    DECEDENTS.  §  1443 

iug  his  administration,  and,  upon  his  refusal  so 
to  do,  may  commit  him  until  he  obej',  or  may  re- 
volve his  letters,  or  both. 

Compelling  obedience:  Compare  sees.  1627,  1628: 
as  to  contempt:    See  sees.  1209,  1219. 


CHAPTEK  IV. 

OF   THE  INVENTORY  AND   COLLECTION   OF   THE   EF- 
FECTS  OF  DECEDENTS. 

Article  I.    Inventory,  Appraisement,   and  Possession  of  Es- 
tate. 
II,    Embezzlement  and  Surrender  of  Property  of  Es- 
tate. 


ARTICLE  I. 

INVENTORY,    APPRAISEMENT,    AND    POSSESSION    OF 
ESTATE. 

§  1443.    Inventory  to  be  returned,   including  the  homestead. 

§  1444.    Appraisement  and   pay  of  appraisers. 

§  1445.     Oath  of  appraisers  and  inventory,  how  made. 

§  1446.  Inventory  to  account  for  moneys.  If  all  money, 
no  appraisement  necessary. 

§  1447.    Effect  of  naming  a  debtor  executor. 

§  1448.    Discharge  or  bequest  of  debt  against  executor. 

§  1449.    To  make  oath  to  inventory. 

§  1450.  Letters  may  be  revoked  for  neglect  of  administra- 
tor. 

§  1451.    Inventory  of  after-discovered  property. 

§  1452.  Administrator  and  executor  to  possess  real  and  per- 
sonal estate. 

§  1453.  Executor  or  administrator  to  deliver  real  estate  to 
heirs  or  devisees  at  the  end  of  ten  months,  unless 
there  are  debts  to  be  satisfied. 

y  §  1443.  Every  executor  or  administrator  must 
J  make  and  return  to  the  court,  within  three  months 
s^  after  his  appointment,  a  true  inventory  and  ap- 
^  praisement  of  all  the  estate  of  the  decedent,  in- 


§§  1444.  1445        EFFECTS     OF    DECEDENTS.  562 

eluding  the  homestead,  if  any,  which  has  come 
to  his  possession  or  knowledge.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  85.  In 
effect  April  16th,  1880.] 

§  1444.  To  malie  the  appraisement,  the  court 
or  a  judge  thereof  must  appoint  three  disinterested 
persons  (any  two  of  whom  may  act),  who  are  en- 
titled to  receive  a  reasonable  compensation  for 
their  services,  not  to  exceed  five  dollars  per  day, 
to  be  allowed  by  the  court  or  judge.  The  apprais- 
ers must,  with  the  inventory,  file  a  verified  ac- 
count of  their  services  and  disbursements.  If  any 
part  of  the  estate  is  in  any  other  county  than  that 
in  which  letters  issued,  appraisers  thereof  may  be 
appointed,  either  by  the  court  or  judge  having 
jiU'isdiction  of  the  estate  or  by  the  court  or  judge 
of  such  other  county,  on  request  of  the  court  or 
judge  having  jurisdiction.  No  clerlv  or  deputy,  nor 
any  person  related  by  consanguinity  or  affinity  to 
or  connected  by  marriage  or  in  business  with  the 
judge  of  the  court,  shall  be  appointed  or  shall  be 
competent  to  act  as  appraiser  in  any  estate,  or 
matter  or  proceeding  pending  before  such  judge  or 
in  said  court.  [Amendment  approved  March  23, 
1893;  Stats,  1893,  185.] 

Appraisers— duty  as  to  homestead:  Sees.  1476, 
1486;   appointed  at  chambers:    Sec.  166. 

§  1445.  Before  proceeding  to  the  execution  of 
their  duty,  the  appraisers,  before  any  oflieer  au- 
thorized to  administer  oaths,  must  take  and  sub- 
scribe an  oath,  to  be  attached  to  the  inventory, 
that  they  will  truly,  honestly,  and  impartially  ap- 
praise the  property  exhibited  to  them,  according 
to  the  best  of  their  knowledge  and  ability.  They 
must  then  proceed  to  estimate  and  appraise  the 
property;  each  article  must  be  set  doAvn  separate- 
ly, with  the  value  thereof  in  dollars  and  cents,  in 
figures,  opposite  to  the  articles,  respectively;    the 


563  EFFECTS    OP    DECEDENTS.  §§  1446-1448 

inventory  must  contain  all  the  estaite  of  the  dece- 
dent, real  and  personal,  a  statement  of  all  debts, 
partnerships,  and  other  interests,  bonds,  mort- 
gages, notes,  and  other  securities  for  the  payment 
of  money  belonging  to  the  decedent,  specifying 
the  name  of  the  debtor  in  each  security,  the  date, 
the  sum  originally  payable,  the  indorsements 
thereon,  (if  any)  with  their  dates,  and  the  sum 
which,  in  the  judgment  of  the  appraiser,  may  be 
collected  on  each  debt,  interest,  or  security;  the 
inventory  must  show,  so  far  as  the  same  can  be 
ascertained  by  the  executor  or  the  administrator, 
what  portion  of  the  property  is  community  prop- 
erty, and  what  portion  is  the  separate  property  of 
the  decedent. 

§  1446.  The  inventory  must  also  contain  an  ac- 
count of  all  moneys  belonging  to  the  decedent 
which  have  come  to  the  hands  of  the  executor  or 
administrator;  and  if  none,  the  fact  must  be  so 
stated  in  the  inventory.  If  the  whole  estate  con- 
sists of  money,  there  need  not  be  an  appraisement, 
but  an  inventory  must  be  made  and  returned  as  in 
other  cases. 

§  1447.  The  naming  of  a  person  as  executor 
does  not  thereby  discharge  him  from  any  just 
claim  which  the  testator  has  against  him,  but  the 
claim  must  be  included  in  the  inventory,  and  the 
executor  is  liable  for  tlie  same,  as  for  so  much 
money  in  his  hands,  when  the  debt  or  demand  be- 
comes due. 

§  1448.  The  discharge  or  bequest  in  a  will,  of 
any  debt  or  demand  of  the  testator  against  the  ex- 
ecutor named,  or  any  other  person,  is  not  valid 
against  the  creditors  of  the  decedent,  but  is  a  spe- 
cific bequest  of  the  debt  or  demand.  It  must  be 
included  in  the  inventory,  and  if  necessary,  ap- 
plied in  the  payment  of  the  debts.    If  not  neces 


?§  1-149-1452         EFFECTS    OF    DECEDENTS.  564 

sary  for  that  purpose,  it  must  be  paid  in  the  same 
manner  and  proportion  as  other  specific  legacies. 

§  1449.  The  inventory  must  be  signed  by  the 
appraisers,  and  the  executor  or  administrator  must 
talve  and  subscribe  an  oath  before  an  officer  au- 
thorized to  administer  oaths,  that  the  inventory 
contains  a  true  statement  of  all  the  estate  of  the 
decedent  which  lias  come  to  his  knowledge  and 
possession,  and  particularly  of  all  money  belong- 
ing to  the  decedent,  and  of  all  just  claims  of  the 
decedent  against  the  affiant.  The  oath  must  be 
indorsed  upon  or  annexed  to  the  inventory. 

§  1450.  If  an  executor  or  administrator  neglects 
or  refuses  to  return  the  inventory  within  the  time 
prescribed,  or  within  such  further  time,  not  ex- 
ceeding two  months,  which  the  court  or  judge 
shall  for  reasonable  cause  allow,  the  court  may. 
upon  notice,  revolve  the  letters  testamentary  or  of 
administration,  and  the  executor  or  administrator 
is  liable  on  his  bond  for  any  injury  to  the  estate, 
or  any  person  interested  therein,  arising  from 
such  failure. 

§  1451.  Whenever  property  not  mentioned  in 
an  inventory  that  is  made  and  filed,  comes  to  the 
possession  or  knoAvledge  of  an  executor  or  admin- 
istrator, he  must  cause  the  same  to  be  appraised 
in  the  manner  prescribed  in  this  article,  and  an 
inventory  thereof  to  be  returned  within  two 
months  after  the  discovery;  and  the  making  of 
such  inventory  may  be  enforced,  after  notice,  by 
attachment  or  removal  from  office. 

Enforced  by  attachment,  etc.:  Compare  sec.  1440. 

§  1453,  The  executor  or  administrator  is  en- 
titled to  the  possession  of  all  the  real  and  personal 
estate  of  the  decedent,  and  to  receive  the  rents 
and  profits  of  the  real  estate  until  the  estate  is 


565  EFFECTS  OF  DECEDENTS.         §  1453 

settled,  or  until  delivered  over  by  order  of  the 
court  to  the  heirs  or  devisees;  and  must  lieep  in 
good  tenantable  repair  all  houses,  buildings,  and 
fixtures  thereon  Avhich  are  under  his  control.  The 
heirs  or  devisees  may  themselves,  or  jointly  with 
the  executor  oi  administrator,  maintain  an  action 
for  the  possession  of  the  real  estate,  or  for  the 
purpose  of  quieting  title  to  the  same,  against  any 
one  except  the  executor  or  administrator;  but  this 
section  shall  not  be  so  construed  as  requiring  them 
so  to  do.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  85.    In  effect  April  16th,  1880.] 

Authority  of  executors:   Sec.  1355. 

Possession  of  estate:  See  sec'  1581;  when  that 
of  heirs,  etc.:  Sec.  1581;  as  to  partnership  prop- 
erty:   See  sec.   1585. 

Until  delivered  to  heirs:  See  sec.  1453. 

Action  by  executor,  etc.:  Sees.  1458,  1581,  1582 
et  seq. 

§  1453.  Unless  it  satisfactorily  appear  to  the 
court  that  the  rents,  issues,  and  profits  of  the  real 
estate  for  a  longer  period  are  necessary  to  be  re- 
ceived by  the  executor  or  administrator,  where- 
with to  pay  the  debts  of  the  decedent,  or  that  it 
will  probably  be  necessary  to  sell  the  real  estate 
for  the  payment  of  such  debts,  the  court,  at  the 
end  of  the  time  limited  for  the  presentation  of 
claims  against  the  estate,  must  direct  the  executor 
or  administrator  to  deliver  possession  of  all  the 
real  estate  to  the  heirs-at-law  or  devisees. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  85.  In  effect  April  16th.  1880.] 
Code  Civ.   Proc- 4S. 


1458,  1459         EFFECTS    OF    DECEDENTS  566 


ARTICLE  II. 

EMBEZZLEMENT  AND  SURRENDER  OF  PROPERTY  OF 
THE    ESTATE. 

I  1458.  Embezzling  estate  before  grant  of  letters  testamen- 
tary. 

§  1459.  Citation  to  persons  suspected  to  have  embezzled  es- 
tate,  etc. 

§  1460.  Refusal  to  obey  citation,  penalty  for,  and  for  em- 
bezzlement. May  be  compelled  to  disclose  by  im- 
prisonment.    Liable  for  double  damages. 

§  1461.  Persons  intrusted  with  the  estate  of  decedent  may 
be   cited  to  account. 

§  1458,  If  any  person,  before  the  granting  of 
letters  testamentary  or  of  administration,  embez- 
zles or  alienates  any  of  the  moneys,  goods,  chat- 
tels, or  effects  of  a  decedent,  he  is  chargeable 
therewith  and  liable  to  an  action  by  the  executor 
or  administrator  of  the  estate,  for  double  the  value 
of  the  property  so  embezzled  or  alienated,  to  be 
recovered  for  the  benefit  of  the  estate. 

Action  by  executors,  etc.— generally:  Sees.  1452, 
14G0,  1581  et  seq. 

§  1459.  If  any  executor,  administrator,  or  other 
person  interested  in  the  estate  of  a  decedent,  com- 
plains to  the  Superior  Court,  or  a  judge  thereof, 
on  oath,  that  any  person  is  suspected  to  have  con- 
cealed, embezzled,  smuggled,  conveyed  away,  or 
disposed  of  any  moneys,  goods,  or  chattels  of  the 
decedent,  or  has  in  his  possession  or  knowledge 
any  deeds,  conveyances,  bonds,  contracts,  or  other 
writings,  which  contain  evidences  of  or  tend  to 
disclose  the  right,  title,  interest,  or  claim  of  the 
decedent  to  any  real  or  personal  estate,  or  any 
claim  or  demand,  or  any  lost  will,  the  said  court 
or  judge  may  cite  such  person  to  appear  before 
such  court,  and  may  examine  him  on  oath  upon 


567  EFFECTS   OF  DECEDENTS.  §  1460 

the  matter  of  such  complaint.  If  such  person  i& 
not  in  the  county  where  the  decedent  dies,  or 
where  letters  have  been  granted,  he  may  be  cited 
and  examined  either  before  the  Superior  Court  of 
the  county  where  he  is  found,  or  before  the  Su- 
perior Court  of  the  countj'  where  the  decedent 
dies,  or  Avhere  letters  have  been  granted.  But  if, 
in  the  latter  case,  he  appears  and  is  found  innocent 
his  necessary  expenses  must  be  allowed  him  out 
of  the  estate.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  8«.  In  effect  April  16th. 
ISSO.] 

§  1460.  If  the  person  so  cited  refuses  to  appear 
and  submit  to  an  examination,  or  to  answer  such 
interrogatories  as  may  be  put  to  him,  touching 
the  matters  of  the  complaint,  the  court  may,  by 
warrant  for  that  purpose,  commit  him  to  the  coun- 
ty jail,  there  to  remain  in  close  custody  until  he 
submits  to  the  order  of  the  court,  or  is  discharged 
according  to  law.  If,  upon  such  examination,  it 
appears  that  he  has  concealed,  embezzled,  smug- 
gled, conveyed  away,  or  disposed  of  any  moneys, 
goods,  or  chattels  of  the  decedent,  or  that  he  has 
in  his  possession  or  l^nowledge  any  deeds,  convey- 
ances, bonds,  contracts,  or  other  writings  contain- 
ing evidences  of  or  tending  to  disclose  the  right/ 
title,  interest,  or  claim  of  the  decedent  to  any  real 
or  personal  estate,  claim,  or  demand,  or  any  lost 
will  of  the  decedent,  the  court  may  make  an  order 
requiring  such  person  to  disclose  his  knowledge 
thereof  to  the  executor  or  administrator,  and  may 
commit  him  to  the  county  jail,  there  to  remain  un- 
til the  order  is  complied  with,  or  he  is  discharged 
according  to  law;  and  all  such  interrogatories  and 
answers  must  be  in  writing,  signed  by  the  party 
examined,  and  filed  in  the  court.  The  order  for 
such  disclosure  made  upon  such  examination  shall 
be  prima  facie  evidence  of  the  right  of  the  execu- 
tor or  administrator  to  such  property  in  any  action 


§  1431  EFFECTS    OF   DECEDENTS.  568 

brought  for  the  recovery  thereof;  and  any  judg- 
ment recovered  therein  must  be  for  double  the 
value  of  the  property  as  assessed  by  the  court  or 
jury,  or  for  return  of  the  property  and  damages  in 
addition  thereto,  equal  to  the  value  of  such  prop- 
erty. In  addition  to  the  examination  of  the  party, 
witnesses  may  be  produced  and  examined  on 
either  side.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  86.  In  effect  April  16th,  1880.] 
Contempt:  Sees.  1209,  1219. 

§  1461.  The  Superior  Court,  or  a  judge  thereof, 
upon  the  complaint,  on  oath,  of  any  executor  or 
administrator,  may  cite  any  person  who  has  been 
intrusted  with  any  part  of  the  estate  of  the  dece- 
dent, to  appear  before  such  court,  and  require  him 
to  render  a  full  account,  on  oath,  of  any  moneys, 
goods,  chattels,  bonds,  accounts,  or  other  property 
or  papers  belonging  to  the  estate,  which  have 
come  to  his  possession  in  trust  for  the  executor 
or  administrator,  and  of  his  proceedings  thereon; 
and  if  the  person  so  cited  refuses  to  appear  and 
render  such  account,  the  court  may  proceed 
against  him  as  provided  in  the  preceding  section. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  86.    In  effect  April  16th,  1880.] 


569 


PROVISION    FOR    FAMILY 


1464,  146& 


CHAPTER  V. 

OF  THE  PROVISION  FOR  THE  SUPPORT  OF  THE  FAM- 
ILY,  AND   OF  THE   HOMESTEAD. 

Article  I.     Of  the  Provision  for  the  Support  of  the  Family. 
II.    Of  the  Homestead. 


ARTICLE  I. 


OF    THE    PROVISION 


FOR    THE 
FAMILY. 


SUPPORT    OF    THE 


§  1464.  Widow  and  minor  children  may  remain  in  dece- 
dent's  house,   etc. 

§  1465.  All  property  exempt  from  execution  to  be  set  apart 
for  use  of  family. 

§  1466.     May  make  extra  allowance. 

§  1467.    Paj-^ment   of   allowance. 

§  1468.  Property  set  apart,  how  apportioned  between  widow 
and  children. 

§  1469.  Estate  less  than  fifteen  hundred  dollars  to  go  to 
wife  and  child;  those  less  than  three  thousand  to 
be    summarily   administered. 

§  1470.     When  all  property  to  go  to  children. 

§  1464.  When  a  person  dies,  leaving-  a  widow 
or  minor  cliildren,  the  widow  or  children,  until  let- 
ters are  granted  and  the  inventory  is  returned,  are 
entitled  to  remain  in  possession  of  the  homestead, 
of  all  the  wearing  apparel  of  the  family,  and  of 
■  all  the  household  furniture  of  the  decedent,  and 
are  also  entitled  to  a  reasonable  provision  for  their 
support,  to  be  allowed  by  the  Superior  Court,  or  a 
judge  thereof.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  87.  In  effect  April  16th, 
1880.] 

Provisions  for  support  of  familv:  sees.  1466,  1467. 
1467. 


1465.    Upon  the  return  of  the  inventory,  or  at 


any  subsequent  time    during  the    administration, 


I  any 


§  1466  PROVISION   FOR  FAMILY  570 

the  court  may,  on  its  own  motion,  or  on  petition 
therefor,  set  apart  for  the  use  of  the  surviving 
husband  or  wife,  or,  in  case  of  his  or  her  death, 
to  the  minor  children  of  the  decedent,  all  the  prop- 
erty exempt  from  execution,  including  the  home- 
stead selected,  designated,  and  recorded;  provided 
such  homestead  was  selected  from  the  common 
property,  or  from  the  separate  property,  of  the  per- 
sons selecting  or  joining  in  the  selection  of  the 
same.  If  none  has  been  selected,  designated,  and 
recorded,  or  in  case  the  homestead  was  selected  by 
the  survivor  out  of  the  separate  property  of  the 
decedent,  the  decedent  not  having  joined  therein, 
the  court  must  select,  designate,  and  set  apart, 
and  cause  to  be  recorded,  a  homestead  for  the  use 
of  the  surviving  husband  or  wife  and  the  minor 
children;  or  if  there  be  no  surviving  husband  or 
wife,  then  for  the  use  of  the  minor  children,  in 
the  manner  provided  in  article  two  of  this  chap- 
ter, out  of  the  common  property,  or  if  there  be  no 
common  property,  then  out  of  the  real  estate  be- 
longing to  the  decedent.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  87.  In  effect 
April  16th,  1880.] 

Attorney,  court  may  appoint  to  represent  party: 
Sec.  1718. 

Appeal  from  order  setting  apart  homestead,  or 
refusing  so  to  do:  See  sec.  1716,  post. 

§  1466.  If  the  amount  set  apart  be  insufficient 
for  the  support  of  the  widow  and  children,  or 
either,  the  court  or  a  judge  thereof  must  make 
such  reasonable  allowance  out  of  the  estate  as 
shall  be  necessary  for  the  maintenance  of  the  fam- 
ily, according  to  their  circumstances,  during  the 
progress  of  the  settlement  of  the  estate,  which,  in 
case  of  an  insolvent  estate,  must  not  be  longer 
than  one  j^ear  after  granting  letters  testamentary 
or  of  administration.     [Amendment  approved  Ap- 


571  PROVISION    FOR    FAMILY.  §§  1467-1569 

ril  16,  1880;  Amendments  1880,  87.    In  effect  April 
IGth,  1880.] 

§  1467.  Any  allowance  made  by  the  court  or 
judge,  in  accordance  with  the  provisions  of  this 
article,  must  be  paid  in  preference  to  all  other 
charges,  except  funeral  charges  and  expenses  of 
administration;  and  any  such  allowance,  when- 
ever made,  may,  in  the  discretion  of  the  court  or 
judge,  take  effect  from  the  death  of  the  decedent. 

§  1468.  When  property  is  set  apart  to  the  use 
of  the  family,  in  accordance  with  the  provisions  of 
this  chapter,  if  the  decedent  left  a  widow  or  sur- 
viving husband,  and  no  minor  child,  such  prop- 
erty is  the  property  of  the  widow  or  surviving 
husband.  If  the  decedent  left  also  a  minor  child 
or  children,  the  one-half  of  such  property  shall  be- 
long to  the  widow  or  surviving  husband,  and  the 
remainder  to  the  child,  or  in  equal  shares  to  the 
children,  if  there  be  more  than  one.  If  there  be  no 
widow  or  surviving  husband,  the  whole  belongs  to 
the  minor  child  or  children.  If  the  property  set 
apart  be  a  homestead,  selected  from  the  separate 
B  iT^n  ^^^"^  '^'^urt  can  only  set  it 
°  2  S.  c3  5  ignated  in  the 

w  J5  §,  >g:?S'irs  of  the  de- 
^g»^-  sSg?  iiendment   ap- 
'oi^l-fg^gS     1881,8.     Ap- 
2.  ^  z:.  t/i  O  :^ 

'p;?  S  ^f  §  ^OfflT:    Sec.  1470. 

B  J  2,  ^  »  §  g  I  he  inventory  of 

'^'  ^  f6  ^  ><  J5  JO  fij  it  shall  appear 

§  S  H.  ^^^®  estate  does 

(^      >  .red  dollars,  and 

'  g^ldren  of  the  de- 

g'r;     3of,  shall,  by  or- 

S  p*  «    to  appear  on  a 

<  w  w  le  whole  of  said 

^  '  ::^ 


§  1466  PROVISION   FOR  FAMILY  570 

the  court  may,  on  its  own  motion,  or  on  petition 
tlierefor,  set  apart  for  the  use  of  the  surviving 
husband  or  wife,  or,  in  case  of  his  or  lier  death, 
to  the  minor  children  of  the  decedent,  all  the  prop- 
erty exempt  from  execution,  including  the  home- 
stead selected,  designated,  and  recorded;  provided 
such  homestead  was  selected  from  the  common 
property,  or  from  the  separate  property,  of  the  per- 
sons selecting  or  joining  in  the  selection  of  the 
same.  If  none  has  been  selected,  designated,  and 
recorded,  or  in  case  the  homestead  was  selected  by 
the  survivor  out  of  the  separate  property  of  the 
decedent,  the  decedent  not  having  joined  therein, 
the  court  must  select,  designate,  and  set  apart, 
and  cause  to  be  recorded,  a  homestead  for  the  use 
of  the  surviving  husband  or  wife  and  the  minor 
children;  or  if  there  be  no  surviving  husband  or 
wife,  then  for  the  use  of  the  minor  children,  in 
the  manner  provided  in  article  two  of  this  chap- 
ter, out  of  the  common  property,  or  if  there  be  no 
common  property,  then  out  of  the  real  estate  be- 
longing to  the  decedent.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  87.  In  effect 
April  16th,  1880.]        _______—— 

Attorney,  com  ^      ^  .2  &  2  '2 

Sec.  1718. 

Appeal  from  « 
refusing  so  to  d( 

§  1466.    If  the 
for  the   support  1 
either,  the  courtj 
such  reasonable  ^. 
shall  be  necessary^ 
ily,  according  to  ^^ 
progress  of  the  sej 
case  of  an  insolp  ^2 
than  one  year  aft^  % 
or  of  administratis  § 
i  w 

3  .2  45 


Q 

■^  'C  'O   .^    oJ 

Pi 

after 
e  the 
the  ji 
went 
him, 

2  S  t^-o  s 

1 

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571  PROVISION    FOR    FAMILY.  §§  1487-1569 

ril  16,  1880;  Amendments  1880,  87.    In  effect  April 
IGth,  1880.] 

§  1467.  Any  allowance  made  by  the  court  or 
judge,  in  accordance  with  the  provisions  of  this 
article,  must  be  paid  in  preference  to  all  other 
charges,  except  funeral  charges  and  expenses  of 
administration;  and  any  such  allowance,  when- 
ever made,  may,  in  the  discretion  of  the  court  or 
judge,  talvc  effect  from  the  death  of  the  decedent. 

§  1468.  When  property  is  set  apart  to  the  use 
of  the  family,  in  accordance  with  the  provisions  of 
this  chapter,  if  the  decedent  left  a  widow  or  sur- 
viving husband,  and  no  minor  child,  such  prop- 
erty is  the  property  of  the  widow  or  surviving 
husband.  If  the  decedent  left  also  a  minor  child 
or  children,  the  one-half  of  such  property  shall  be- 
long to  the  widow  or  surviving  husband,  and  the 
remainder  to  the  child,  or  in  equal  shares  to  the 
children,  if  there  be  more  than  one.  If  there  be  no 
widow  or  surviving  husband,  the  whole  belongs  to 
the  minor  child  or  children.  If  the  property  set 
apart  be  a  homestead,  selected  from  the  separate 
property  of  the  deceased,  the  court  can  only  set  it 
apart  for  a  limited  period,  to  be  designated  in  the 
order,  and  the  title  vests  in  the  heirs  of  the  de- 
ceased, subject  to  such  order.  [Amendment  ap- 
proved Feb.  19,  1881;  Amendments  1881,  8.  Ap- 
proved February  19th,  1881.] 

Where  widow  has  a  maintenance:   Sec.  1470. 

§  1469.  If,  upon  the  return  of  the  inventory  of 
the  estate  of  a  deceased  person,  it  shall  appear 
therefrom  that  the  value  of  the  whole  estate  does 
not  exceed  the  sum  of  fifteen  hundred  dollars,  and 
if  there  be  a  widow  or  minor  children  of  the  de- 
ceased, the  court,  or  a  judge  thereof,  shall,  by  or- 
der, require  all  persons  interested  to  appear  on  a 
day  fixed,  to  show  cause  why  the  whole  of  said 


§  1470  PROVISION    FOR    FAMILY.  572 

estate  should  not  be  assigned  for  the  use  and  sup- 
port of  the  family  of  the  deceased.  Notice  thereof 
shall  be  given  and  proceedings  had  in  the  same 
manner  as  provided  in  sections  one  thousand  six 
hundred  and  thirty-three,  one  thousand  six  hun- 
dred and  thirty-five,  and  one  thousand  six  hundred 
and  thirty-eight  of  this  Code.  If,  upon  the  hear- 
ing, the  court  finds  that  the  value  of  the 
estate  does  not  exceed  the  sum  of  fifteen 
hundred  dollars,  it  shall,  by  decree  for  that 
purpose,  assign  to  the  widow  of  the  deceased,  if 
there  be  a  widow,  if  no  widow,  then  to  the  minor 
children  of  the  deceased,  if  there  be  minor  child- 
ren, the  whole  of  the  estate,  subject  to  whatever 
mortgages,  liens,  or  incumbrances  there  may  be 
upon  said  estate  at  the  time  of  the  death  of  the 
deceased,  after  the  payment  of  the  expenses  of 
the  last  illness  of  the  deceased,  funeral  charges, 
and  expenses  of  administration,  and  the  title 
thereof  shall  rest  absolutely  in  such  widow  or 
minor  children,  subject  to  whatever  mortgages, 
liens,  or  incumbrances  there  may  be  upon  said  es- 
tate at  the  time  of  the  death  of  the  deceased,  and 
there  must  be  no  further  proceedings  in  the  ad- 
ministration, unless  further  estate  be  discovered. 
[Approved  February  16,  1897;  Stats.  1897,  c.  10. 
In  effect  immediately.] 

Act  authorizing  next  of  Ivin  of  decedent  to  col- 
lect deposit  in  bank  of  less  than  three  hundred 
dollars.    See  post.  Appendix,  814. 

§  1470.  If  the  widow  has  a  maintenance  deriv- 
ed from  her  own  property  equal  to  the  portion  set 
apart  to  her  by  the  preceding  sections  of  this  arti- 
cle, the  whole  property  so  set  apart,  other  than  the 
homestead,  must  go  to  the  minor  children. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  88.    In  effect  April  16th,  1880.] 


573  PROVISION    FOR    FAMILY.  §  1474 

AKTICLE  II. 

OF  THE  HOMESTEAD. 

§  1474.     Rights  of  survivor  to  homestead. 

§  1475.     Selected   and  recorded  homestead   set  off  to  person 

entitled.     Subsisting   liens   to    be   paid   by   solvent 

estate. 
§  1476.    Appraisers  to  carve   out  of   the  original,   exceeding 

five  thousand  dollars   in   value,   a  homestead,   and 

report  the  same. 
§  1477.    Report   of   the   appraisers.     Majority   and   minority, 

which  may  be  confirmed. 
§  1478.     Day  to  be  set   for   confirming  or   rejecting   the   re- 
port of  the  appraisers.     Appeal. 
§  1479.    If   report   rejected,    other   appraisers    appointed.      If 

again  rejected,   partition  suit  to  be  prought. 
§  1480.    Instead   of  dividing  the   homestead,    who   may   take 

a  deed  thereof  at  appraised  value. 
§  1481.    If  no   homestead  is   selected   and   recorded  prior  to 

death  of  decedent,  one  may  be  petitioned  for. 
§  1482.     Court  to  direct  partition  suit  in  the  District  Court, 

when.      Proceedings    thereon.    . 
§  1483.    If  property  is  common  or  separate,   court  to  cause 

appraisement  and  admeasurement  to  be  made. 
§  1484.    New  appraisement,  when  ordered.     Instead  of  deed- 
ing property  at  appraised  value,   public  sale  to  be 

ordered,  when. 
§  1485.     Costs,   to  whom  chargeable.     Persons  succeeding  to 

rights  of  homestead  owners  have  all  their  powers 

and  rights. 
§  1486.     Certified  copies  of  certain  orders  to  be  recorded. 

§  1474.  If  the  homestead  selected  by  the  hus- 
band and  wife,  or  either  of  them,  dnring  their 
coverture,  and  recorded  while  both  were  living",  was 
selected  from  the  community  property,  or  from 
the  separate  property  of  the  person  selecting  or 
joining  in  the  selection  of  the  same,  it  vests,  on 
the  deatli  of  the  husband  or  wife,  absolutely  in 
the  survivor.  If  the  homestead  was  selected  from 
the  separate  property  of  either  the  husband  or  the 
wife,  witliout  his  or  her  consent,  it  vests,  on  the 
death  of  the  person  from  whose  property  it  was 


§§  1475.  1476  PROVISION  FOR  FAMILY.  574 

selected,  in  his  or  lier  lieirs,  subject  to  the  power 
of  the  Superior  Court  to  assign  it  for  a  limited 
period  to  the  family  of  the  decedent.  In  either 
case  it  is  not  subject  to  the  payment  of  any  debt 
or  liability  contracted  by  or  existing  against  the 
husband  and  wife,  or  either  of  them,  previous  to 
or  at  the  time  of  the  death  of  such  husband  or 
wife,  except  as  provided  in  the  Civil  Code. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  88.    In  effect  April  16th,  1880.] 

Homestead — generally,  and  setting  apart:  Sec. 
1465. 

§  1475.  If  the  homestead  selected  and  recorded 
prior  to  the  death  of  the  decedent  be  returned  in 
the  inventory  appraised  at  not  exceeding  five 
thousand  dollars  in  value,  or  was  previously  ap- 
praised as  provided  in  the  Civil  Code,  and  such 
appraised  value  did  not  exceed  that  sum,  the  Su- 
perior Court  must,  by  order,  set  it  off  to  the  per- 
sons in  whom  title  is  vested  by  the  preceding  sec- 
tion. If  there  be  subsisting  liens  or  incumbrances 
on  the  homestead,  the  claims  secured  thereby  must 
be  presented  and  allowed  as  other  claims  against 
the  estate.  If  the  funds  of  the  estate  be  adequate 
to  pay  all  claims  against  the  estate,  the  claims 
so  secured  must  be  paid  out  of  such  funds.  If 
the  funds  of  the  estate  be  not  sufficient  for  that 
purpose,  the  claims  so  secured  shall  be  paid  pro- 
portionately with  other  claims  alloAA-ed,  and  the 
liens  or  incumbrances  on  the  homestead  shall  only 
be  enforced  against  the  homestead  for  any  defici- 
ency remaining  after  such  payment.  [Amend- 
nient  approved  April  16,  1880;  Amendments  1880, 
88.    In  effect  April  10th,  1880.] 

§  1476.  If  the  homestead,  as  selected  and  re- 
corded, be  returned  in  the  inventory  appraised  at 
more  than  five  thousand  dollars,  the  appraisers 
must,    before   they   malce   their  return,    ascertain 


575  PROVISION  FOR  FAMILY.  §§  1477,  14"?^ 

and  appraise  the  value  of  the  homestead  at  the 
time  the  same  was  selected,  ami  if  such  value  ex- 
ceeded five  thousand  dollars,  or  if  the  homestead 
Xvas  appraised  as  provided  in  the  Civil  Code,  and 
such  appraised  value  exceeded  that  sum,  the  ap- 
praisers must  determine  whether  the  premises  can 
be  divided  without  material  injury,  and  if  they 
find  that  they  can  be  thus  divided,  they  must  ad- 
measure and  set  apart  to  tlie  parties  entitled 
thereto,  such  portion  of  the  premises,  including  the 
dwelling-house,  as  will  amount  in  value  to  the  sum 
of  five  thousand  dollars,  and  make  report  thereof, 
giving  the  metes,  bounds,  and  full  description  of 
the  portion  set  apart  as  a  homestead.  If  the  ap- 
praisers find  that  the  premises  exceeded  in  value, 
at  the  time  of  their  selection,  the  sum  of  five  thou- 
sand dollars,  and  that  they  cannot  be  divided  with- 
out material  injury,  they  must  report  such  finding, 
and  thereafter  the  court  may  malie  an  order  for 
the  sale  of  the  premises  and  the  distribution  of  the 
proceeds  to  the  parties  entitled  thereto.  [Amend- 
ment approved  March  24,  1874;  Amendments  187.3- 
4,  303.  In  effect  July  1st,  1874.] 
Appraisement— generally:  Sec.  1444. 

§  1477.  Any  two  of  the  appraisers  concurring 
may  discharge  the  duties  imposed  upon  the  three, 
\  and  malxe  the  report.  A  dissenting  report  may  be 
^  made  by  the  third  appraiser.  The  report  must 
^  state  fully  the  acts  of  the  appraisers.  Both  reports 
J  may  be  heard  and  considered  by  the  court  in  de- 
i  termining  a  confirmation  or  rejection  of  the  ma- 
^  jority  report,  but  the  minority  report  must  in  no 
case  be  confirmed. 

§  1478.    When  the  report  of  the  appraisers  is 

^  liled,  the  court  must  set  a  day  for  hearing  any  ob- 

^^  jections  thereto,  from  any  one  interested  in  the 

^  -estate.    Notice  of  the  hearing  must  be  given  for 

{^    such  time,  and  in  such  manner  as  the  court  may 


§§  1479-1486  PROVISION    FOR    FAMILY.  576 

direct.  If  the  court  be  satisfied  tliat  tlie  report  is 
correct,  it  must  be  confirmed,  otlierwise  rejected. 
In  case  the  report  is  rejected,  tlie  court  may  ap- 
point new  appraisers  to  examine  and  report  upon 
the  homestead,  and  similar  proceedings  may  be 
had  for  the  confirmation  or  rejection  of  their  re- 
port as  upon  the  first  report.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  363. 
In  effect  July  1st,  1874.] 

§§  1479,  1480,  1481,  1482,  1483,  1484  are  re- 
pealed.    [In  effect  July  1st,  1874.] 

§  1485.  The  costs  of  all  proceedings  in  the  Su- 
perior Court  provided  for  in  this  chapter,  must  be 
paid  by  the  estate  as  expenses  of  administration. 
Persons  succeeding  by  purchase  or  otherwise  to 
the  interests,  rights,  and  title  of  successors  to 
homesteads,  or  to  the  right  to  have  homesteads  set 
apart  to  them,  as  in  this  chapter  provided,  have  all 
the  rights  and  benefit  conferred  by  the  law  on  the 
persons  whose  interests  and  rights  they  acquire. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  89.    In  effect  April  16th,  1880.] 

§  1486.  A  certified  copy  of  every  final  order 
made  in  pursuance  of  this  article,  by  which  a  re- 
pport  is  confirmed,  property  assigned,  or  sale  con- 
firmed, must  be  recorded  in  the  otfice  of  the  re- 
corder of  the  county  where  the  homestead  property 
is  situated. 

Certified  copy— recording:  See  sec.  1719. 


CLAIMS   AGAINST    ESTATE.  §  1490 


Chapter  vi. 

OP  CLAIMS  AGAINST  THE  ESTATE. 

§  §490.    Notice  to  creditors.    Additional  notice. 

§  1491.    Time  expressed  in  the  notice. 

§  1492.    Copy,  and  proof  of  notice  to  be  filed  and  order  made. 

§  1493.  Time  within  which  claims  against  an  estate  must 
be  presented. 

§  1494.  Claims  to  be  sworn  to,  and  when  allowed,  to  bear 
same  interest  as  judgments. 

§  1495.  Probate  judge  may  present  claim,  and  action  there- 
on. 

§  1496.    Allowance  and  rejection  of  claims. 

§  1497.  Approved  claims  or  copies  to  be  filed.  Claims  se- 
cured by  liens  may  be  described.     Lost  claims. 

§  1498.     Rejected  claims  to  be  sued  for  within  three  months. 

§  1499.  Claims  barred  by  Statute  of  Limitations.  When  and 
who  probate  judge  may  examine. 

§  1500.    Claims  must  be  presented  before  suit. 

§  1501.    Time  of  limitation. 

§  1502.    Claims  in  action  pending  at  time  of  decease. 

§  1503.    Allowance  of  claim  in  part. 

§  1504.    Effect  of  judgment  against  executor. 

§  1505.  Execution  not  to  issue  after  death.  If  one  is  levied 
the  property  may  be  sold. 

§  1506.  What  judgment  is  not  a  lien  on  real  property  of 
estate. 

§  1507.  May  refer  doubtful  claims.  Effect  of  referee's  al- 
lowance of  rejection. 

§  1508.    Trial  by  referee,  how  confirmed  and  its  effect. 

§  1509.    Liability  of  executor,  etc.,  for  costs. 

§  1510.     Claims   of  executor,   etc.,   against  estate. 

§  1511.  Executor  neglecting  to  give  notice  to  creditors,  to 
be   removed. 

§  1512.    Executor  to   return   statement  of  claims. 

^  1513,    Court  may  order  payment  of  interest  to  cease,  when 

§  1490.    Every  executor  or  administrator  mnst. 

immediately  after  his   appointment,   cause  to  be 

^  published   in   some   newspaper  of  the  county,   if 

I    there  be  one,  if  not,  then  in  such  newspaper  as 

'    may  be  desig:nated  by  the  court,  a  notice  to  the 

creditors   of   the   decedent,   requiring-   all   persons 

liaving  claims  against  him  to  exhibit  them,  with 

Code   Civ.   Proc— 49. 


§S  1491-1493  CLAIMS  AGAINST  ESTATE.  578 

the  necessary  vouchers,  to  the  executor  or  admin- 
istrator, at  the  place  of  his  residence  or  business, 
to  be  specified  in  the  notice;  such  notice  must  be 
published  as  often  as  the  judge  or  court  shall  di- 
rect, but  not  less  than  once  a  week  for  four  weeks; 
the  court  or  judge  may  also  direct  additional  notice 
by  publication  or  posting.  In  case  such  executor 
or  administrator  resigns,  or  is  removed,  before 
the  time  expressed  in  the  notice,  his  successor 
must  give  notice  only  for  the  unexpired  time  al- 
lowed for  such  presentation. 

Publication  of  notice — how  often:  Sec.  1705. 

Two  months'  neglect— to  give  notice,  causes  rev- 
ocation of  letters:    Sec.  1511. 

1491.  The  time  expressed  in  the  notice  must  be 
ten  months  after  its  first  publication  when  the  es- 
tate exceeds  in  value  the  sum  of  ten  thousand  dol- 
lars, and  four  months  when  it  does  not. 

§  1492.  After  the  notice  is  given,  as  required 
uilL>y  the  preceding  section,  a  copy  thereof,  with  the 
affidavit  of  due  publication,  or  of  publication  and 
posting,  must  be  filed,  and  upon  such  affidavit  or 
other  testimony  to  the  satisfaction  of  the  court, 
an  order  or  decree  showing  that  due  notice  to 
creditors  has  been  given,  and  directing  that  such 
order  or  decree  be  entered  in  the  minutes  and  re- 
corded, must  be  made  by  the  court. 

Affidavit  of  publication— of  notice:  Sees.  2010, 
2011. 

§  1493.  All  claims  arising  upon  contracts, 
Avliether  the  same  be  due,  not  duo,  or  contingent, 
must  be  presented  within  the  time  limited  in  the 
notice,  and  any  claim  not  so  presented  is  barred 
forever;  provided,  however,  that  when  it  is  made 
to  appear  by  the  affidavit  of  the  claimant,  to  the 
satisfaction  of  the  court,  or  a  judge  thereof,  that 
the  claimant  liad  no  notice    as    provided    in  this 


579  CLAIMS  AGAINST   ESTATE.  §  1494 

chapter,  by  reason  of  being  out  of  the  State,  it 
may  be  presented  at  any  time  before  a  decree  of 
distribution  is  entered.  [Amendment  approved 
April  IG,  1880;  Amendments  1880,  89.  In  effect 
April  16th,  1880.] 

Claim— action,  none  unless  claim  presented:  Sec. 
1500;  after  rejection:  Sec.  1498;  pending  at  death, 
claim  must  be  presented:  Sec.  1502;  affidavit:  Sec. 
1494;  allowance  or  rejection  of:  Sees.  1496-1498, 
1503;  contingent:  Sec.  1648;  executor,  action  by: 
Sec.  1510;  against  judgment  on:  Sees.  1504,  1509, 
interest  on:  Sees.  1494,  1513;  Judge  of  Superior 
Court:  Sec.  1495;  judgment,  against  decedent, 
Sec.  1505;  action  barred  by  statute:  Sees.  1499, 
1501;  examination  by  judge:  Sec.  1499;  on  mort- 
gage, or  lien:  Sec.  1500;  Reference  of:  Sec.  1507; 
statement  of  claims:  Sec.  1512. 

Partnership:  Sec.  1585. 

Contingent  claims:  Sec.  1648. 

§  1494.  Every  claim  which  is  due,  when  pre- 
sented to  the  executor  or  administrator,  must  be 
supported  by  the  affidavit  of  the  claimant,  or  some 
one  in  his  behalf,  that  the  amount  is  justly  due, 
that  no  payments  have  been  made  thereon  which 
are  not  credited,  and  that  there  are  no  offsets  to 
the  same,  to  the  knowledge  of  the  affiant.  If  the 
claim  be  not  due  when  presented,  or  be  contingent, 
the  particulars  of  such  claim  must  be  stated. 
When  the  affidavit  is  made  by  a  person  other  than 
the  claimant,  he  must  set  forth  in  the  affidavit  the 
reason  why  it  is  not  made  by  the  claimant.  The 
oath  may  be  taken  before  any  officer  authorized 
to  administer  oaths.  The  executor  or  administra- 
tor may  also  require  satisfactory  vouchers  or 
proofs  to  be  produced  in  support  of  the  claim. 
If  the  estate  be  insolvent  no  greater  rate  of  inter- 
est shall  be  allowed  upon  any  claim  after  the  first 
publication  of  notice  to  creditors  than  is  allowed 
on    judgments  obtained    in  the   Superior    Court. 


§§  1495,  1496  CLAIMS  AGAINST   ESTATE.  58a 

[AmeDdment  approved  April  16.  1880;  Amend- 
ments 1880,  89.     In  effect  April  16tb,  1880.] 

Claim  on  mortgage  or  lien:   See  sec.  1500. 

Claim  paid  without  affidavit  and  allowance  when 
allowed  executor.    See  post,  Appendix,  p.  815. 

§  1495.  Any  judge  of  a  Superior  Court  may 
present  a  claim  against  the  estate  of  a  decedent  for 
allowance  to  the  executor  or  administrator  there- 
of, and  if  the  executor  or  administrator  allows  the 
claim,  he  must  in  writing  designate  some  other 
judge  of  the  Superior  Court  of  the  same  or  an  ad- 
joining county,  who,  upon  the  presentation  of  such 
claim  to  him,  is  vested  with  power  to  allow  or  re- 
ject it,  and  the  judge  presenting  such  claim,  in 
case  of  its  rejection  by  the  executor  or  administra- 
tor, or  by  such  judge  as  shall  have  acted  upon  it, 
has  the  same  right  to  sue  in  a  proper  court  for  its 
recovery  as  other  persons  have  when  their  claims 
against  an  estate  are  rejected.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  89.  In 
effect  April  16th,  1880.] 

§  1496.  When  a  claim,  accompanied  by  the  af- 
fidavit required  in  this  chapter,  is  presented  to  the 
executor  or  administrator,  he  must  indorse  there- 
on his  allowance  or  rejection,  with  the  day  and 
date  thereof.  If  he  allow  the  claim,  it  must  be 
presented  to  a  judge  of  the  Superior  Court  for  his 
approval,  who  must  in  the  same  manner  indorse 
upon  it  his  allowance  or  rejection.  If  the  executor 
or  administrator,  or  the  judge,  refuse  or  neglect  to 
indorse  such  allowance  or  rejection  for  ten  days 
after  the  claim  has  been  presented  to  him,  such 
refusal  or  neglect  may,  at  the  option  of  the  claim- 
ant, be  deemed  equivalent  to  a  rejection  on  the 
tenth  day;  and  if  the  presentation  be  made  by  a 
notary,  the  certificate  of  such  notary,  under  seal, 
shall  be  prima  facie  evidence  of  such  presentation 


581  CLAIMS   AGAINST   ESTATE.  §  1197 

and  the  date  thereof.  If  the  claim  be  presented  to 
the  executor  or  administrator  before  the  expira- 
tion of  the  time  limited  for  the  presentation  of 
claims,  the  same  is  presented  in  time,  tliough  acted 
upon  by  the  executor  or  administrator,  and  by 
the  judge,  after  the  expiration  of  such  time.  If 
the  claim  be  payable  in  a  particular  kind  of  money 
or  currency,  it  shall,  if  allowed,  be  payable  only 
in  such  money  or  currency.  [Amendment  approv- 
ed April  IG,  1880;  Amendments  1880,  90.  In  effect 
April  10th,  1880.] 

Judge  may  approve  claims  in  chambers:  Sec.  167. 

§  1497.  Every  claim  allowed  by  the  executor 
or  administrator,  and  approved  by  a  judge  of  the 
Superior  Court,  or  a  copy  thereof,  as  hereinafter 
provided,  must,  within  thirty  days  thereafter,  be 
filed  in  the  court,  and  be  ranked  among  the  ac- 
knowledged debts  of  the  estate,  to  be  paid  in  due 
course  of  administration.  If  the  claim  be  founded 
on  a  bond,  bill,  note,  or  any  other  instrument,  a 
copy  of  such  instrument  must  accompany  the 
claim,  and  the  original  instrument  must  be  exhib- 
ited, if  demanded,  unless  it  be  lost  or  destroyed, 
in  which  case  the  claimant  must  accompany  his 
claim  by  his  affidavit,  containing  a  copy  or  par- 
ticular description  of  such  instrument,  and  stating 
its  loss  or  destruction.  If  the  claim,  or  any  part 
thereof,  be  secured  by  a  mortgage,  or  other  lien 
which  has  been  recorded  in  the  office  of  the  re- 
corder of  the  county  in  which  the  land  affected  by 
it  lies,  it  shall  be  sufficient  to  describe  the  mort- 
gage or  lien,  and  refer  to  the  date,  volume,  and 
page  of  its  record.  If,  in  any  case,  the  claim- 
ant has  left  any  original  voucher  in  the  hands 
of  the  executor  or  administrator,  or  suffered 
the  same  to  be  filed  in  court,  he  may  withdraw  the 
same  when  a  copy  thereof  has  been  already,  or  is 
then,  attached  to  his  claim.    A  brief  description 


Jj  1498-1500  CLAIMS  AGAINST  ESTATE.  582 

of  every  claim  filed  must  be  entered  by  the  clerk 
iu  the  register,  showing  the  name  of  the  claimant, 
the  amount  and  character  of  the  claim,  rate  of  in- 
terest, and  date  of  allowance.  [Amendment  ap- 
proved April  IG,  1880;  Amendment  1880,  90.  In 
effect  April  16th,  1880.] 
Claim  secured  by  mortgage,  etc.:    See  sec.  1500. 

§  1498.  When  a  claim  is  rejected  either  by  the 
executor  or  administrator,  or  a  judge  of  the  Su- 
perior Court,  the  holder  must  bring  suit  in  the 
proper  court  against  the  executor  or  administrator 
within  three  months  after  the  date  of  its  rejection, 
if  it  be  then  due,  or  within  two  mouths  after  it 
])ecomes  due,  otherwise  the  claim  shall  be  forever 
barred.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  91.    In  effect  April  16,  1880.] 

Time  for  bringing  suit:  Sec.  1501. 

§  1499.  No  claim  must  be  allowed  by  the  exec- 
utor or  administrator,  or  bj'  a  judge  of  the  Su- 
perior Court,  which  is  barred  by  the  Statute  of 
Limitations.  When  a  claim  is  presented  to  a  judge 
for  his  allowance,  he  may,  in  his  discretion,  ex- 
amine the  claimant  and  others  on  oath,  and  hear 
any  legal  evidence  touching  the  validity  of  the 
claim.  [Amendment  approved  April  16,  1880: 
-Vmendments  1880,  91.    In  effect  April  16th,  1880.] 

Statute  of  Limitations:  Sees.  335-363;  object  of: 
Sec.  353;  vacancy  in  administration  does  not  af- 
fect, sec.  1501. 

S  1500.  No  holder  of  any  claim  against  an  es- 
tate shall  maintain  any  action  thereon,  unless  the 
claim  is  first  presented  to  the  executor  or  admin- 
istrator, except  in  the  following  case;  an  action 
may  be  brought  by  any  holder  of  a  mortgage  or 
lien  to  enforce  the  same  against  the  property  of 
the  estate  subject  thereto,  where  all  the  recourse 
against  any   otlier  property   of  the   estate   is   ex- 


583  CLAIMS  AGAINST  ESTATE.  §§  1501-1501 

pressly  waived  in  the  complaint;  but  no  coun- 
sel fees  shall  be  recovered  in  such  action  unless 
such  claim  be  so  presented.  [Amendment  approv- 
ed March  15,  187(5:  Amendments  1875-6,  103.  In 
effect  March  15,  1876.] 

Secured  claims  against  estate:  See  supra,  sec. 
1493.  With  respect  to  incumbrances  upon  the 
homestead:  See  sec.  1475,  ante.  •     C. 

\ 

§  1501.  The  time  during  which  there  shall  be  y' 
a  vacancy  in  the  administration  must  not  be  in- v^ 
eluded  in  any  limitations  herein  prescribed.,, 

§  1502.  If  an  action  is  pending  against  the  de- 
cedent at  the  time  of  his  death,  the  plaintiff  must 
in  like  manner  present  his  claim  to  the  executor 
or  administrator  for  allowance  or  rejection,  au- 
thenticated as  required  in  other  cases;  and  no  re- 
covery shall  be  had  in  the  action  unless  proof  l>e 
made  of  the  presentations  required. 

§  1503.  Whenever  any  claim  is  presented  to  an 
executor  or  administrator,  or  to  a  judge,  and  he  is 
willing  to  allow  the  same  in  part,  he  must  state  in 
his  indorsement  the  amount  he  is  willing  to  allow 
If  the  creditor  refuse  to  accept  the  amount  al- 
lowed in  satisfaction  of  his  claim,  he  shall  recover 
no  costs  in  any  action  therefor  brought  against 
the  executor  or  administrator,  unless  he  recover  a 
greater  amount  than  that  offered  to  be  allowed. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  91.    In  effect  April  16th,  1880.] 

§  1504.  A  judgment  rendered  against  an  exec- 
utor or  administrator,  upon  any  claim  for  money 
against  the  estate  of  his  testator  or  intestate,  only 
establishes  the  claim  in  the  same  manner  as  if  it 
had  been  allowed  by  the  executor  or  administra- 
tor and  the  judge;  and  the  judgment  must  be  that 
the  executor  or  administrator  pay,  in  due  course  of 


§§  1505-1507  CLAIMS  AGAINST  ESTATE.  584 

administration,  the  amount  ascertained  to  be  due, 
A  certified  transcript  of  the  original  docl^et  of  the 
judgment  must  be  filed  among  the  papers  of  the 
estate  in  court.  No  excution  must  issue  upon  such 
judgment,  nor  shall  it  create  any  lien  upon  the 
property  of  the  estate,  or  give  to  the  judgment 
creditor  any  priority  of  payment.  [Amendment 
approved  April  10,  1880;  Amendments  1880,  91. 
In  effect  April  16th,  1880.] 

§  1505.  When  any  judgment  has  been  rendered 
for  or  against  the  testator,  intestate  in  his  life- 
time, no  execution  shall  issue  thereon  after  his 
death,  except  as  provided  in  section  six  hundred 
and  eighty-six.  A  judgment  against  the  decedent 
for  the  recovery  of  money  must  be  presented  to 
the  executor  or  administrator  lil^e  any  other  claim: 
If  execution  is  actually  levied  upon  any  property 
of  the  decedent  before  his  death,  the  same  may  be 
sold  for  the  satisfaction  thereof;  and  the  officer 
mailing  the  sale  must  account  to  the  executor  or 
administrator  for  any  surplus  in  his  hands,  A 
judgment  creditor  having  a  judgment  Avhich  was 
rendered  against  the  testator  or  intestate  in  his 
lifetime,  may  redeem  any  real  estate  of  the  dece- 
dent from  any  sale  under  foreclosure  or  execution, 
in  lilie  manner  and  with  lil^e  effect  as  if  the  judg- 
ment debtor  were  still  living.  [Amendment  ap- 
proved March  28,  1874;  Amendments  1873-4,  413. 
In  effect  March  28th,  1874.] 

§  1506.  A  judgment  rendered  against  a  dece- 
dent, dying  after  verdict  or  decision  on  an  issue 
of  fact,  but  before  judgment  is  rendered  thereon, 
is  not  a  lien  on  the  real  property  of  the  decedent, 
but  is  payable  in  due  course  of  administration. 

§  1507.  If  the  executor  or  administrator  doubts 
the  correctness  of  any  claim  presented  to  him, 
lie  may  enter  into  an  agreement,  in  writing,  with 


585  CLAIMS   AGAINST   ESTATE.         §§  1508,  1509 

the  claimant,  to  refer  the  matter  in  controversy  to 
some  disinterested  person,  to  be  approved  by  the 
superior  court,  or  a  judge  thereof.  Upon  filing 
the  agreement  and  approval  of  such  court  or 
judge,  in  the  office  of  the  clerk  of  the  court  for 
the  county  in  which  the  letters  testamentary  or  of 
administration  were  granted,  the  clerk  must  en- 
ter a  minute  of  tlie  order  referring  the  matter  in 
controversy  to  the  person  so  selected;  or,  if  the 
parties  consent,  a  reference  may  be  had  in  the 
court;  and  the  report  of  the  referee,  if  confirmed, 
establishes  or  rejects  the  claim  the  same  as  if  it 
had  been  allowed  or  rejected  by  the  executor  or 
administrator  and  judge.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  p.  91.  In  effect 
July  16,  1880.] 

§  1508.  The  referee  must  hear  and  determine 
the  matter,  and  make  his  report  thereon  to  the 
court  in  which  his  appointment  is  entered.  The 
same  proceedings  shall  be  had  in  all  respects, 
and  the  referee  shall  have  the  same  powers,  be 
entitled  to  the  same  compensation,  and  subject  to 
the  same  control,  as  in  other  cases  of  reference. 
The  court  may  remove  the  referee,  appoint  an- 
other in  his  place,  set  aside  or  confirm  his  re- 
port, and  adjudge  costs,  as  in  actions  against  ex- 
ecutors or  administrators,  and  the  judgment  of 
the  court  thereon  shall  be  as  valid,  and  effectual, 
in  all  respects,  as  if  the  same  had  been  rendered 
in  a  suit  commenced  by  ordinary  process. 

Reference:  Sees.  638-645. 

§  1509.  When  a  judgment  is  recovered,  with 
costs,  against  any  executor  or  administrator,  he 
shall  be  individually  liable  for  such  costs,  but 
they  must  be  allowed  him  in  his  administration 
accounts,  unless  it  appears  that  the  suit  or  pro- 
ceeding in  which  the  costs  were  taxed  was  prose- 
cuted or  defended  without  just  cause. 


§§  1510-1512  CLAIMS  AGAINST  ESTATE.  586 

§  1510.  If  the  executor  or  administrator  is  a 
creditor  of  tlie  decedent,  his  claim  duly  authenti- 
cated by  affidavit  must  be  presented  for  allowance 
or  rejection  to  a  judge  of  the  superior  court,  and 
its  allowance  by  the  judge  is  sufficient  evidence 
of  its  correctness,  and  must  be  paid  as  other 
claims  in  due  course  of  administration.  If,  how- 
ever, the  judge  reject  the  claim,  action  thereon 
may  be  had  against  the  estate  by  the  claimant, 
and  summons  must  be  served  upon  the  judge, 
who  may  appoint  an  attorney,  at  the  expense  of 
the  estate,  to  defend  the  action.  If  the  claimant 
recover  no  judgment,  he  must  pay  all  costs,  in- 
cluding defendant's  reasonable  attorney's  fees,  to 
be  fixed  by  the  court.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  p.  92.  In  effect 
April  16,  1880.] 

Claim:  Sec.  1493. 

§  1511.  If  an  executor  or  administrator  neg- 
lects, for  two  months  after  his  appointment,  to 
give  notice  to  creditors,  as  prescribed  by  this 
chapter,  the  court  must  revolve  his  letters,  and  ap- 
point some  other  person  in  his  stead,  equally  or 
the  next  in  order  entitled  to  the  appointment. 

§  1512.  At  the  same  time  at  which  he  is  re- 
quired to  return  his  inventory,  the  executor  or  ad- 
ministrator must  also  return  a  statement  of  all 
clainas  against  the  estate  which  have  been  pre- 
sented to  him,  if  so  required  by  the  court,  or  a 
judge  thereof,  and  from  time  to  time  thereafter 
he  must  present  a  statement  of  claims  subse- 
quently presented  to  him,  if  so  required  by  the 
court,  or  a  judge  thereof.  In  all  such  statements 
he  must  designate  the  names  of  the  creditors, 
the  nature  of  each  claim,  when  it  became  due,  or 
will  become  due,  and  whether  it  was  allowed  or 
rejected  by  him.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  p.  92.  In  effect  April  16, 
1880.] 


".ST  SALES   AND    CONVEYANCES.        §§  1513,  If. IB 

§  1513.  If  there  be  any  debt  of  the  decedent 
bearing  interest,  whether  presented  or  not,  tht-^ 
executor  or  administrator  may,  by  order  of  the 
coui*t,  pay  the  amount  then  accumulated  and  un- 
paid, or  any  part  thereof,  at  any  time  when  there 
are  sufficient  funds  properly  applicable  thereto, 
whether  said  claim  be  then  due  or  not;  and  inter- 
est shall  thereupon  cease  to  accrue  upon  the 
amount  so  paid.  This  section  does  not  apply  io 
existing  debts,  unless  the  creditor  consent  to  ac 
cept  the  amount.  [New  section  approved  Marcli 
24,  1874;  Amendments  1873-4,  p.  c5G6.  In  effect 
July  1,  1874.] 

Payment  of  debts  of  estate,  generally:  Sec.  lG4.'i 
et  seq. 


CHAPTER  VII. 

OB"  SALES  AND  CONVEYANCES  OF  PROPERTY  OF  DE- 
CEDENTS. 

Article  I.  Sales  in  General. 

II.  Sales  of  Personal  Property. 

III.  Summary  Sales  of  Mines  and  Mining  Interests. 

IV.  Sales  of  Real  Estate,  Interests  therein,  and  Con- 

firmation thereof. 


ARTICLE  I. 

SALES  IN  GENERAL. 

§  1516.    Personal  estate  first  chargeable.     Real  estate  .  when 

sold. 
§  1517.    No  sales  valid  except  by  order  of  Superior  Court. 
§  1518.    Applications  for  orders  of  sale. 
S  1519.     But  one  petition,  order,  and  sale  must  be  had  when 

it  is  possible  to  do  so. 

§  1516.  All  the  property  of  a  decedent  shall  be 
<liargoable  with  the  payment  of  the  debts  of  the 
decensed.  the  expenses  of  administration,  and  the 
iillowanco  to  the  family,  except  as  otherwise  pro- 


g§  1517,  1518.       SALES  AND   CONVEYANCES.  588- 

vided  in  this  Code,  and  in  tlie  Civil  Code.  And 
the  said  property,  personal  and  real,  may  be  sold 
as  the  court  may  direct,  in  the  manner  prescribed 
in  this  chapter.  There  shall  be  no  priority  as  be- 
tween personal  and  real  property  for  the  above 
purposes.  [Amendment  approved  ]March  24,  1874; 
Amendments  1873-4,  p.  367.  In  effect  July  1, 
1874.] 

All  property  chargeable  for  debts,  etc.;  Civil 
Code,  sec.  1358;  order  of  appropriation.  Civil  Code, 
sec.  1359;  and  see  sees  1560-1504,  post. 

Personal  and  real  property,  appropriated  with- 
out distinction:  See  sec.  1563. 

Sold  as  the  court  may  direct:  Sec.  1517. 

A  contract  for  the  purchase  of  real  estate  may 
be  sold:  Sees.  1565  et  seq. 

Sale,  executor,  etc.,  cannot  buy  at,  or  be  inter- 
ested in:  Sec.  1576. 

§  1517.  No  sale  of  any  property  of  an  estate  of 
a  decedent  is  valid  unless  made  under  order  of 
the  superior  court,  except  as  otherwise  provided 
in  this  chapter.  All  sales  must  be  under  oath  re- 
ported to  and  confirmed  by  the  court  before  the 
title  to  the  property  sold  passes.  [Amendment 
approved  April  16,  1880;  Amendments  1880,  p.  92, 
In  effect  April  16,  1880.] 

Valid  sales,  where  propertj^  is  mortgaged:  Sees. 
1569,  726. 

§  1518.  All  petitions  for  orders  of  sale  must  be 
in  writing,  setting  forth  the  facts  showing  the 
sale  to  be  necessary,  and,  upon  the  hearing,  any 
person  interested  in  the  estate  may  file  his  writ- 
ten objections,  which  must  be  heard  and  deter- 
mined. A  failui-e  to  set  forth  the  facts  showing 
the  sale  to  be  necessary  will  not  invalidate  the 
subsequent  proceedings,  if  the  defect  be  sup- 
plied by  the  proofs  at  the  hearing,  and  the  gener- 
al facts  showing  the  necessity  be  stated  in  the 


s^ 


589  SALES    AND    CONVEYANCES.        §§  1519,  1522 

order  directing,-  the  sale.  [Amendment  approved 
Marcli  24,  1874;  Amendments  187o-4,  p.  3G7.  In 
effect  July  1,  1874.] 

§  1519.  When  it  appears  to  the  court  that  the 
estate  is  insolvent,  or  that  it  will  require  a  sale 
of  all  the  property  of  the  estate  of  every  charac- 
ter, to  pay  the  familj-  allowance,  expenses  of  ad- 
ministration, and  debts,  there  need  be  but  one  pe- 
tition filed,  but  one  order  of  sale  made,  and  but 
one  sale  had,  except  in  cases  of  perishable  proper- 
ty, which  may  be  sold  as  provided  in  section  fif- 
teen hundred  and  twenty-two.  The  court,  when  a 
petition  for  the  sale  of  any  property  for  any  of 
the  purposes  herein  named  is  presented,  must  in- 
quire fully  into  the  probable  amount  required  to 
make  all  such  payments,  and  if  there  be  no  more 
estate  than  sutficient  to  pay  the  same,  may  re- 
quire but  one  proceeding  for  the  sale  of  the  en- 
tire estate.  In  such  case  the  petition  must  set 
forth  substantially  the  facts  required  by  section 
fifteen  hundred  and  thirty-seven.  [Amendment 
approved  April  16,  1880;  Amendments  1880,  p.  92. 
In  effect  April  16,  1880.] 

Orders,  generally,  in  probate  matters:  Sec.  1704. 

One  petition,  for  realty,  sale  of  personalty  on: 
Sec.  1536,  1639. 

ARTICLE  II. 

SALES  OF  PERSONAL  PROPERTY. 

§  1522.     Perishable   and   depreciating  property  to   be  sold, 
§  1523.     Order  to  sell  personal  property. 

§  1524.    Partnership  interests  and  choses  in  action,  how  sold. 
§  1525.     Order  of  sale,  what  to  direct  and  what  to  be  first 
sold. 
1.526.     Sale  of  personal   property. 


>;  §  1522.    At  any  time  after  receiving  letters,  the 

^  executor,   administrator,   or  special  administrator 

5  may  apply  to  the  court  or  judge  and  obtain  an  or- 

^  Code   Civ.   Proc— 50. 


§§  1523,  1524       SALES   AND    CONVEYANCES.  590 

der  to  sell  perishable  and  other  personal  prop- 
erty likely  to  depreciate  in  value,  or  which  will 
incur  loss  or  expense  by  being  kept,  and  so  much 
other  personal  property  as  maj^  be  necessary  to 
pay  the  allowance  made  to  the  family  of  the  dece- 
dent. The  order  for  the  sale  may  be  made  with- 
out notice;  but  the  executor,  administrator,  or 
special  administrator  is  responsible  for  the  prop- 
erty, unless,  after  malving  a  sworn  return  and  on 
a  proper  showing,  the  court  shall  approve  the 
sale. 

Petition:  Sec.  1518. 

Order  for  the  sale:  Sec.  1525. 

§  1523.  If  clnims  against  the  estate  have  been 
allowed,  and  a  sale  of  property  is  necessary  for 
their  payment,  or  for  the  expenses  of  administra- 
tion, or  for  the  payment  of  legacies,  the  executor 
or  administrator  may  apply  for  an  order  tt>  sell 
so  much  of  the  personal  property  as  may  be  ne- 
cc^ssary  therefor.  Upon  filing  liis  petition,  notice 
of  at  least  five  days  must  be  given  of  the  hearing 
of  the  application,  either  by  posting  notices  or  by 
advertising.  He  may  also  malve  a  similar  appli- 
cation from  time  to  time,  so  long  as  any  person- 
al property  remains  in  his  hands,  and  sale  there- 
of is  necessary.  If  it  appear  for  the  best  interests 
of  the  estate,  he  may,  at  any  time  after  filing 
tlio  inventory,  in  like  mnnner,  and  after  giving 
like  notice,  apply  for  and  obtain  an  order  to 
sell  the  whole  of  the  personal  property  belonging 
to  the  estate,  whether  necessary  to  pay  debts  or 
not.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  93.  In  effect  April  16, 
1880.] 

Notice  by  advertising:  See  sec.  1705. 

§  1524.  Partnership  interest  or  interests  be- 
htnging  to  any  estate  l)y  virtue  of  any  partner- 


591  SALES   AND    CONVEYANCES.       §§  1525,  1526 

ship  formerly  existing,  interests  in  personal  prop- 
erty pledged,  and  cbosos  in  action,  may  be  sold 
in  the  same  manner  as  other  personal  property, 
when  it  appears  to  be  for  the  best  interest  of  the 
estate.  Before  confirming  the  sale  of  any  part- 
nership interest,  whether  made  to  the  surviving 
partner  or  to  any  other  person,  the  court  or  judge 
must  carefully  inquire  into  the  condition  of  the 
partnership  affairs,  and  must  examine  the  surviv- 
ing partner,  if  in  the  county  and  able  to  be  pres- 
ent in  court. 
Partnership  interest:  Sec.  1585. 

§  1525.  If  it  appears  that  a  sale  is  necessary 
for  the  payment  of  debts  or  the  family  allowance, 
or  for  the  best  interest  of  the  estate  and  the  per- 
sons interested  in  the  property  to  be  sold,  wheth- 
er it  is  or  is  not  necessary  to  pay  the  debts  or 
family  allowance,  the  court  or  judge  must  order  it 
to  be  made.  In  malting  orders  and  sales  for  the 
payment  of  debts  or  family  allowance,  such  ar- 
ticles as  are  not  necessary  for  the  support  and 
subsistence  of  the  family  of  the  decedent,  or  are 
not  specially  bequeathed,  must  be  first  sold,  and 
tlie  court  or  judge  must  so  direct.  [Amendment 
approced  March  24,  1874:  Amendments  1873-4,  p 
368.     In  effect  July  1,  1874.] 

§  1526.  The  sale  of  personal  propertj^  must  be 
made  at  public  auction  for  such  money  or  curren- 
cy as  the  court  may  direct,  and  after  public  notice 
given  for  at  least  ten  days  by  notices  posted  in 
three  public  places  in  the  county,  or  by  publica- 
tion in  a  newspaper,  or  both,  containing  the  time 
and  place  of  the  sale,  and  a  brief  description  of 
the  property  to  be  sold,  unless  for  good  reason 
shown  the  court,  or  a  judge  thereof,  orders  a  pri- 
vate sale  or  a  shorter  notice.  Public  sales  of  such 
property  must  be  made  at  the  court-house  door, 
or  at  the  residence  of  the  decedent,  or  at  some 


§§  1529,  1530       SALES    AND    CONVEYANCES.  592 

other  public  place;  but  no  sale  shall  be  made  of 
any  personal  property  which  is  not  present  at  the 
time  of  sale,  unless  the  court  otherwise  order. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  p.  93.    In  effect  April  10,  1880.] 


AETICLE  III. 

SUMMARY  SALES  OP  MINES  AND  MINING  INTERESTS. 

§  1529.    Mines  may  be  sold,  how. 

§  1530.  Petition  for  sale,  who  may  file  and  what  to  con- 
tain. 

§  1531.  Order  to  show  cause,  how  made  and  on  what  no- 
tice. 

§  1532.     Order  of  sale,  when  and  how  made. 

§  1533.  Further  proceedings  to  conform  to  articles  two 
and  four. 

§  1529.  When  it  appears  from  the  inventory 
of  the  estate  of  any  decedent  that  his  estate  con- 
sists in  whole  or  in  part  of  mines,  or  interests  in 
mines,  such  mines  or  interests  may  be  sold  under 
the  order  of  the  court  havin.u'  jurisdiction  of  the 
estate,  as  hereinafter  provided.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880.  p.  93. 
In  effect  April  16,  1880.] 

§  1530.  The  executor  or  administrator,  or  any 
heir  at  law,  or  creditor  of  the  estate,  or  any  part- 
ner or  member  of  any  minin.a-  company,  in  which 
interests  or  shares  are  held  or  owned  by  the  es- 
tate, may  file  in  the  court  a  petition,  in  writing, 
setting-  forth  the  general  facts  of  the  estate  be- 
ing then  in  due  course  of  administration,  and  par- 
ticularly describing  the  mine,  interest,  or  shares 
Avliicli  it  is  desired  to  sell,  and  particularly  the 
condition  and  situation  of  the  mines  or  mining  in- 
terests, or  of  the  mining  company  in  Avhich  such 
interests  or  shares  are  lield,  and  the  grounds  upon 
which  the  sale  is  aslced  to  be  made.     [Amendment 


593  SALES    AND    CONVEYANCES.        §§  1531-1533 

approved  April  16,   1880;   Amendmeiits     1880,  p. 
9.">.     In  effect  April  16,  1880.  J 
Petition  for  sale,  generally:  Sec.  1518. 

§  1531.  Upon  the  presentation  of  such  peti- 
tion, the  court,  or  a  judge  thereof,  must  malce  an 
order  directing  all  persons  interested  to  appear 
before  such  court,  at  a  time  and  place  specified, 
not  less  than  four  or  more  tlian  ten  weeks  from 
the  time  of  making  such  order,  to  show  cause 
why  an  order  should  not  be  granted  to  the  exec- 
utr  or  administrator  to  sell  such  mine,  mining  in- 
terests, shares,  or  stocks,  as  are  set  forth  in  the 
petition  and  belonging  to  the  estate.  A  copy  of 
the  order  to  show  cause  must  be  personally  served 
on  all  persons  interested  in  the  estate,  at  least 
ten  days  before  the  time  appointed  for  hearing 
the  petition,  or  published  at  least  four  successive 
weeks  in  such  newspaper  as  such  court  or  judge 
shall  specify.  If  all  persons  interested  in  the  es- 
tate signify  in  writing  their  assent  to  such  sale, 
the  notice  may  be  dispensed  with.  [Amendment 
approved  Api'il  16,  1880;  Amendments  1880,  p. 
93.     In  effect  April  16,  1880.] 

Publication  of  notice:  Sec.  1705. 

§  1532.  If,  upon  hearing  the  petition,  it  ap- 
pears to  the  satisfaction  of  the  court  that  it  is  to 
the  interest  of  the  estate  that  such  mining  prop- 
erty or  interests  of  the  estate  should  be  sold,  or 
that  an  immediate  sale  is  necessary  in  order  to  se- 
cure the  just  rights  or  interests  of  the  mining  part- 
ners, or  tenants  in  common,  such  court  must  make 
an  order  authorizing  the  executor  or  administra- 
tor to  sell  such  mining  interests,  mines,  or  shares, 
as  hereinafter  provided.  [Amendments  approved 
April  16,  1880;  Amendments  1880.  p.  94.  In  effect 
April  16,  1880.] 

§   1533.    After   the   order   of   sale   is    made,    all 


SALES    AND    CONVEYANCES.  591 

further  proceedings  for  the  sale  of  such  mining 
property,  and  for  the  notice,  report,  and  confirm- 
ation tliereof.  must  be  in  conformity  with  the 
provisions  of  article  four  of  this  cliapter. 


AllTlCLE  IV. 

THE   SALE    OF   REAL   ESTATE,    INTERESTS   THEREIN, 
AND  CONFIRMATION  THEREOF. 

§  1536.     To  sell  real  estate,   when. 

§  1537.     Verified   petition    for   sale,    what   to   contain   and   to 

what  it  may  refer. 
§  1538.    Order  to  persons  interested  to  appear. 
§  1539.    Copy    to    be    served,    assent    given,    or    publication 

made. 
§  1.540.     Hearing   after   proof   of   service.       Presentation     of 

claims. 
§  1541.    Administrator,   executor,  and  witnesses  may  be  ex- 
amined. 
§  1542.     To  sell  real  estate  or  any  part,  when. 
§  1543.     Order  of  sale,   when  to  be  made. 
§  1544.    What  the  order  of  sale  must  contain.     May  be  at 

public  or  private  sale. 
§  1545.  Interested   persons   may  apply     for     order     of  sale. 

Form  of  petition. 
§  1546.    To  deliver  copy  of  order  to  executor. 
§  1547.     Notice   of  sale. 
§  1548.     Time   and    place. 
§  1549.     Private  sale  of  real  estate,   how  made,   and   notice. 

Bids,  when  and  how  received. 
§  1550.     Ninety  per  cent  of  appraised  value  must  be  offered. 
§  1551.    Purchase  money  on  sale  on  credit,  how  secured. 
§  1552.    Hearing    and    setting   aside    sale,    and   when    resale 

may  be  ordered. 
§  1553.    May  file  objections,  when  and  who. 
§  1554.    When  order  of  confirmation  is  to  be  made  and  when 

not. 
S  1555.     Conveyances. 

§  1556.     Order  of  confirmation,   what   to   state. 
§  1557.     Sale  may  be  postponed. 
§  1558.     Notice  of  postponement. 
§  1559.     Sale  of  real  estate  to  pay  legacies. 
§  1.560.     Where  payment  of  debts,  etc.,  provided  for  by  will. 
§  1561.     Sale  without  order.     May  require  security. 
§  1562.    Where  provision  by  will  insufficient. 


595  SALES   AND    CONVEYANCES.        §§  1536,  1537 

§  1563.    Estate  subject  to  debts,   etc. 

§  1564.     Contribution  among  legatees. 

§  1565.    Contract  for  purchase  of  lands  may  be  sold,   how. 

§  1566.     Conditions  of   sale. 

§  1567.    Purchaser  to  give  bond. 

§  1568.    Executor  to  assign  contract. 

§  1569.  Sales  by  executors  or  administrators  of  lands  un- 
der  mortgage   or   lien. 

§  1570.  The  holder  of  the  mortgage  or  lien  may  purchase 
the  lands.  His  receipt  to  the  amount  of  his  claim 
a  valid  payment. 

§  1571.  Administrator  and  executor  liable  for  misconduct  in 
sale. 

§  1572.     Fraudulent    sales. 

§  1573.    Limitation  of  actions  for  vacating  sale,  etc. 

§  1574.     To  what  cases  preceding  section  not  to  apply. 

§  1575.     Account  of  sale  to  be  returned. 

§  1573.    Executor,  etc,  not  to  be  purchaser. 

§  1536.  When  a  sale  of  property  of  the  estate 
is  necessary  to  pay  the  allowance  of  the  family, 
or  the  debts  outstanding  against  the  decedent,  or 
the  debts,  expenses,  or  charges  of  administration 
or  legacies,  or  when  it  appears  to  the  satisfaction 
of  the  court  that  it  is  for  the  advantage,  benefit, 
and  best  interests  of  the  estate,  and  those  inter- 
ested therein  that  the  real  estate,  or  some  part 
thereof,  be  sold,  the  executor  or  administrator  may 
sell  any  real  as  well  as  personal  property  of  the 
estate  upon  the  order  of  the  court;  and  an  applica- 
tion for  the  sale  of  real  property  may  also  em- 
brace the  sale  of  personal  property.  [Amend- 
ment approved  March  23,  1893;  Stats.  1S93,  p. 
212.] 

Sale  of  realty,  authorized:  Sec.  1516;  interest  un- 
der contracts  may  be  included,  sec.  1565;  addition- 
al bond  on,  sec.  1389. 

^  §  1537.  To  obtain  such  order  for  the  sale  of 
\  real  property,  he  must  present  a  verified  petition 
)  to  the  superior  court,  or  a  judge  thereof,  setting 
o   forth  the  amount  of  the  personal  estate  that  has 


§  1537  SAT.ES    AND    CONVEYANCES.  596 

come  to  his  bauds,  and  how  much  thereof,  if  auy, 
remains  undisposed  of;  the  debts  outstanding 
against  the  decedent,  as  far  as  can  be  ascertained 
or  estimated;  the  amount  due  upon  the  family  al- 
lowance or  that  will  be  due  after  the  same  has 
been  in  force  for  one  year;  the  debts,  expenses, 
and  charges  of  administration  already  accrued, 
and  an  estimate  of  what  will  or  may  accrue  dur- 
ing the  administration;  a  general  description  of  all 
the  real  property  of  which  the  decedent  died 
seised,  or  in  which  he  had  any  interest,  or  in 
which  the  estate  has  acquired  any  interest,  and 
the  condition  and  value  thereof,  and  whether  the 
same  be  community  or  separate  property;  the 
names  of  the  legatees  and  devisees,  if  any,  and 
the  heirs  of  the  deceased,  so  far  as  known  to  the 
petitioner;  and  if  said  order  of  sale  of  real  es- 
tate is  petitioned  for  on  the  ground  that  it  is  for 
the  advantage,  benefit,  and  best  interests  of  the 
estate  and  those  interested  therein  that  a  sale  be 
made,  the  petition,  in  addition  to  the  foregoing 
facts,  must  set  forth  in  what  way  an  advantage  or 
benefit  would  accrue  to  the  estate  and  tliose  inter- 
ested tiierein  by  such  sale.  If  any  of  the  matters 
herein  enumerated  cannot  be  ascertained,  it  must 
be  so  stated  in  the  petition;  but  a  failure  to  set 
forth  facts  hereinbefore  enumerated  will  not  in- 
validate the  subsequent  proceedings  if  the  de- 
fect be  supplied  by  the  proofs  at  the  hearing  and 
the  general  facts  showing  that  such  sale  is  nec- 
essary or  that  such  sale  is  for  the  advantage,  ben- 
efit, and  best  interests  of  the  estate  and  those  in- 
terested therein  be  stated  in  the  decree.  [Amend- 
ment approved  March  23,  1893;  Stats.  1893,  p. 
212.] 

Petition:  Sec.  1518.  If  executor  omits  to  apply. 
any  other  person  may:  Sec.  1545. 

Jurisdictional  facts,  presumption  as  to  jurisdic- 
tion: Sec.  98;  stating  facts  in  order:  See.  1704. 


597  SALES    AND    CONVEYANCES.      §§  1538,  1539 

Retiirii  of  sale:  Sec.  1517. 

Summary  sale  of  mine:  Sec.  1580,  ante. 

§  1538.  If  it  appears  to  ttie  court  or  judge, 
from  sucli  petition,  that  it  is  necessary,  or  that 
it  would  be  for  the  advantage,  benefit,  and  best 
interests  of  the  estate  and  those  interested  therein, 
to  sell  the  whole  or  some  portion  of  the  real  es- 
tate for  the  purposes  and  reasons  mentioned  in 
the  preceding  section  or  any  of  them,  such  peti- 
tion must  be  filed,  and  an  order  thereupon  made 
directing  all  persons  interested  in  the  estate  to 
appear  before  the  court,  at  a  time  and  place  spe- 
cified, not  less  than  four  nor  more  than  ten  weeks 
from  the  time  of  malting  such  order,  to  show 
cause  why  an  order  should  not  be  granted  to  the 
executor  or  administrator  for  the  sale  of  such  es- 
tate. [Amendment  approved  ^Nlarcli  23,  1893; 
Stats.  1893,  p.  213.] 

§  1539.  A  copy  of  the  order  to  show  cause 
must  be  personally  served  on  all  persons  interest- 
ed in  the  estate,  any  general  guardian  of  a  minor 
so  interested,  and  any  legatee,  or  devisee,  or  heir 
of  the  decedent,  provided  they  are  residents  of  the 
county,  at  least  ten  days  before  the  time  appoint- 
ed for  hearing  the  petition,  or  be  published  four 
successive  weeks  in  such  newspaper  in  the  county 
as  the  court  or  judge  shall  direct.  If  all  persons 
interested  in  the  estate  join  in  the  petition  for 
the  sale,  or  signify  in  writing  their  assent  there- 
to, the  notice  may  be  dispensed  with,  and  the 
hearing  may  be  had  at  any  time.  [Amendment 
approved  INlarch  24,  1874;  Amendments  1873-4,  p. 
370.    In  effect  July  1,  1874.1 

Notice,  personal  service  of,  see  sees.  1011,  1707- 
1709;  1710;  publication  of,  sec.  1705. 

r.uardian  Avlien  infant  a  partv:  Sees.  372.  373, 
1722,  1769. 


§§  1540-1542        SALES    AND    CONVEYANCES.  598 

§  1540.  The  court,  at  the  time  and  place  ap- 
pointed in  such  order,  or  at  such  other  time  to 
which  tlie  hearing  may  be  postponed,  upon  sat- 
isfactory proof  of  personal  service  or  publica- 
tion of  a  copy  of  the  order,  by  affidavit  or  other- 
wise, if  the  consent  in  writing  to  such  sale  of  all 
parties  interested  is  not  filed,  must  proceed  to 
hear  the  petition,  and  hear  and  examine  the  al- 
legations and  proofs  of  the  petitioners,  and  of  all 
persons  interested  in  the  estate  who  may  oppose 
the  application.  All  claims  against  the  decedent 
not  before  presented,  if  the  period  of  presenta- 
tion has  not  elapsed,  may  be  presented  and  passed 
upon  at  the  hearing,  [Amendment  approved 
April  16,  1880;  Amendments  1880,  p.  95.  In  effect 
April  IG.  1880.] 

§  1541.  The  executor,  administrator,  and  wit- 
nesses may  be  examined  on  oath  by  either  party, 
and  process  to  compel  them  to  attend  and  testify 
may  be  issued  by  the  court  or  judge,  in  the  same 
manner  and  with  like  effect  as  in  other  cases. 
[Amendment  approved  April  IG,  1880:  Amend- 
ments 1880,  p.  95.     In  effect  April  16,  1880.] 

Procuring  attendance,  etc:  Sec.  1985,  et  seq. 

§  1542.  If  it  appears  to  the  satisfaction  of  the 
court,  or  a  judge  thereof,  that  it  is  necessary,  or 
that  it  is  for  the  advantage,  benefit,  and  best  in- 
terests of  the  estate  and  those  interested  therein, 
to  sell  a  part  of  the  real  estate,  and  that  by  a  sale 
thereof  the  residue  of  tlie  estate,  real  and  person- 
al, or  some  specific  part  thereof,  would  be  great- 
ly injured  or  diminished  in  value,  or  subjected  to 
expenses,  or  rendered  unprofitable,  or  that  after 
any  such  sale  the  residue  would  bo  so  small  in 
quantity  or  value,  or  would  be  of  such  a  character 
with  reference  to  its  future  disposition  among 
their  heirs  or  devisee,  as  clearly  to  render  it  to  the 
best  interests  of  all  concerned     tliat     the     same 


599  SALES    AND    CONVEYANCES.      §§  1543,  1544 

should  be  sold,  the  court  may  authorize  the  sale  of 
the  whole  estate  or  any  part  thereof,  as  in  the 
judgment  of  the  court  is  necessary,  or  for  the  ad- 
vantage, benefit,  and  best  interests  of  the  estate 
and  those  interested  therein.  [Amendment  ap- 
proved March  23,  1893;  iStats.  1893,  p.  213.] 

§  1543.  If  it  appears  to  the  satisfaction  of  the 
court,  after  a  full  hearing  upon  the  petition  and 
an  examination  of  the  proofs  and  allegations  of 
the  parties  interested,  that  a  sale  of  the  whole  or 
some  portion  of  the  real  estate  is  necessary  for 
any  of  the  causes  mentioned  in  this  article,  or 
that  a  sale  of  the  whole  or  some  portion  of  the 
real  estate  is  for  the  advantage,  benefit,  and  best 
interests  of  the  estate  and  those  interested  there- 
in, or  if  such  sale  be  assented  to  by  all  the  per- 
sons interested,  an  order  must  be  made  to  sell  the 
whole,  or  so  much  and  such  parts  of  the  real  estate 
described  in  the  petition  as  the  court  shall  judge 
necessary,  or  for  the  advantage,  benefit,  and  best 
interests  of  the  estate  and  those  interested  there- 
in. [Amendment  approved  March  23,  1893;  Stats. 
1893,   p.   213.] 

Order,  need  not  recite  facts:  Sec.  1704. 

Personal  estate:  See,  as  to  ordering  a  sale  of  per- 
sonalty on  application  for  sale  of  realty,  sec. 
1639. 

§  1544.  The  order  of  sale  must  describe  the 
lands  to  be  sold  and  the  terms  of  sale,  which  may 
be  for  cash,  or  .on  a  credit  not  exceeding  one  year, 
payable  in  gross  or  in  installments,  and  in  such 
Ivind  of  money,  with  interest,  as  tlie  court  may 
direct.  The  land  may  be  sold  in  one  parcel  or  in 
subdivisions,  as  the  executor  or  administrator 
shall  judge  most  beneficial  to  the  estate,  unless 
the  court  otherwise  specially  directs.  If  it  appears 
tliat  any  part  of  such  real  estate  has  been  devised, 
and  not  cliarged  in  such  devise  with  the  payment 


§§  1545-1547       SALES   AND    CONVEYANCES.  600 

of  debts  or  legacies,  the  court  must  order  the  re- 
maiuder  to  be  sold  before  that  so  devised.  Ev- 
ery such  sale  must  be  ordered  to  be  made  at  pub- 
lic auction,  unless,  in  the  opinion  of  the  court,  it 
would  benefit  the  estate  to  sell  the  whole  or  some 
part  of  such  real  estate  at  private  sale.  The 
court  may,  if  the  same  is  asked  for  in  the  peti- 
tion, order  or  direct  such  real  estate,  or  any  part 
thereof,  to  be  sold  at  either  public  or  private  sale, 
as  the  executor  or  administrator  shall  judge  to 
be  most  beneficial  for  the  estate.  If  the  executor 
or  administrator  neglects  or  refuses  to  malie  a 
sale  under  the  order,  and  as  directed  therein,  he 
may  be  compelled  to  sell,  by  order  of  the  court, 
made  on  motion,  after  due  notice,  by  any  party 
interested. 
Contents  of  order:  Sec.  1704. 

§  1545.  If  the  executor  or  administrator  ne- 
glects or  refuses  to  apply  for  an  order  of  sale 
when  it  is  necessary,  or  when  it  is  for  the  advan- 
tage, benefit,  and  best  interests  of  the  estate  and 
those  interested  therein  that  the  real  estate  or 
some  portion  thereof  be  sold,  any  person  interest- 
ed may  make  application  therefor  in  the  samf 
manner  as  the  executor  or  administrator,  and  nct- 
tice  thereof  must  be  given  to  the  executor  or  ad- 
ministrator before  the  hearing.  The  petition  of 
such  applicant  must  contain  as  many  of  the  mat- 
ters set  forth  in  section  one  thousand  five  hun- 
dred and  thirty-seven  as  he  can  ascertain,  and  the 
decree  of  sale  must  fix  the  period  of  time  within 
which  the  executor  or  administrator  must  make 
the  sale.  [Amendment  approved  March  23,  1893: 
Stats.  189.3,  p.  214.] 

§  1546.  r  Repealed  March  24,  1874;  Amend- 
ments 1873-4.  p.  371;  took  effect  July  1,  1874.] 

§  1547.    When  a  sale  is  ordered,  and  is  to  be 


301  SALES    AND    CONVEYANCES.      §§  1548,  1549 

made  at  public  auction,  notice  of  the  time  and 
place  of  sale  must  be  posted  in  three  of  the  most 
public  places  iu  the  county  in  which  the  land  is 
situated,  and  published  iu  a  newspaper,  if  there 
be  one  printed  in  the  same  county,  but  if  none, 
then  in  such  paper  as  the  court  may  direct,  for 
three  weeks  successively  next  before  the  sale; 
the  lands  and  tenements  to  be  sold  must  be  de- 
scribed with  common  certainty  in  the  notice. 

§  1548.  Sales  at  public  auction  must  be  made 
in  the  county  where  the  land  is  situated,  but  when 
the  land  is  situated  in  two  or  more  counties  it 
may  be  sold  in  either.  The  sale  must  be  made 
between  the  hours  of  nine  o'clock  in  the  morn- 
ing and  the  setting  of  the  sun  on  the  same  day, 
/ind  must  be  made  on  the  day  named  in  the  notice 
of  sale,  unless  the  same  is  postponed. 

Postponement  of  sale:  Sees.  1557,  1558. 

§  1549.  When  a  sale  of  real  estate  is  ordered 
to  be  made  at  private  sale,  notice  of  the  same 
must  be  posted  up  in  three  of  the  most  public 
places  in  the  county  in  which  the  land  is  situated, 
and  published  in  a  newspaper,  if  there  be  one 
printed  in  the  same  county;  if  none,  then  in  such 
paper  as  the  court  or  a  nudge  thereof  may  direct, 
for  two  weeks  successively  next  before  the  day 
on  or  after  which  the  sale  is  to  be  made,  in  which 
the  lands  and  tenements  to  be  sold  must  be  de- 
scribed with  common  certainty.  The  notice  must 
state  a  day  on  or  after  which  the  sale  will  be 
made,  and  a  place  where  offers  or  bids  will  be 
received.  The  day  last  referred  to  must  be  at 
least  fifteen  days  from  the  first  publication  of 
notice;  and  the  sale  must  not  be  made  before  that 
day,  but  must  be  made  within  six  months  there- 
after. The  bids  or  offers  must  be  in  writing,  and 
may  be  left  at  the  place  designated  in  the  notice, 
or  delivered  to  the  executor  or  administrator  per- 

Code  Civ.  Proc— 51. 


«§  1550-1552        SALES    AND    CONVEYANCES.  602 

sonally,  or  may  be  filed  iu  the  office  of  the  clerk 
of  the  court  to  which  the  return  of  sale  must  be 
made,  at  any  time  after  the  first  publication  of 
the  notice  and  before  the  making  of  the  sale.  If 
it  be  shown  that  it  will  be  for  the  best  interest 
of  the  estate,  the  court  or  judge  may,  by  an  or- 
der, shorten  the  time  of  notice,  which  shall  not, 
however,  be  less  than  one  week,  and  may  provide 
that  the  sale  may  be  made  on  or  after  a  day  less 
than  fifteen,  but  not  less  than  eight  days  from 
the  first  publication  of  the  notice,  in  which  case 
the  notice  of  sale,  and  the  sale,  may  be  made  to 
correspond  with  such  order.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  p.  95. 
In  effect  April  16,  1880.] 

§  1550.  No  sale  of  real  estate  at  private  sale 
shall  be  confirmed  by  the  court,  unless  the  sum 
offered  is  at  least  ninety  x)er  cent,  of  the  appraised 
value  thereof,  nor  unless  such  real  estate  has 
been  appraised  within  one  year  of  the  time  of 
such  sale.  If  it  has  not  been  so  appraised,  or  if 
the  court  is  satisfied  that  the  appraisement  is  too 
high  or  too  low,  appraisers  must  be  appointed,  and 
they  must  make  an  appraisement  thereof  in  the 
same  manner  as  in  case  of  an  original  appraise- 
ment of  an  estate.  This  may  be  done  at  any  time 
before  the  sale  or  the  confirmation  thereof. 

§  1551.  The  executor  or  administrator  must, 
when  the  sale  is  made  upon  a  credit,  take  the 
notes  of  the  purchaser  for  the  purchase-money, 
witli  a  mortgage  on  the  property  to  secure  their 
payment. 

§  1552.  The  executor  or  administrator,  after 
making  any  sale  of  real  estate,  must  make  a  re- 
turn of  his  proceedings  to  the  court,  which  must 
be  filed  in  the  office  of  the  clerk  at  any  time  sub- 
sequent to  the  sale.     A  hearing  upon  the  return 


603  SALES    AND    CONVEYANCES.      §§  1553,  1554 

of  the  proceedings  may  be  asked  for  in  the  return 
or  by  petition  subsequently,  and  thereupon  the 
clerk  must  flx  the  day  for  the  hearing-,  of  which 
notice  of  at  least  ten  days  must  be  given  by  the 
clerk  by  notices  posted  in  three  public  places  in 
the  county  or  by  publication  in  a  newspaper,  and 
must  briefly  indicate  the  land  sold,  the  sum  for 
which  it  was  sold,  and  must  refer  to  the  return 
for  further  particulars.  Upon  the  hearing,  the 
court  must  examine  the  return  and  witnesses  in 
relation  to  the  same,  and  if  the  proceedings  were 
unfair  or  the  sum  bid  disproportionate  to  the  val- 
ue, and  if  it  appears  that  a  sum  exceeding  such 
bid  at  least  ten  per  cent  exclusive  of  a  new  sale 
may  be  obtained,  the  court  may  vacate  the  sale 
and  direct  another  to  be  had,  of  which  notice 
must  be  given,  and  the  sale  in  all  respects  con- 
ducted as  if  no  previous  sale  had  talcen  place.  If 
an  offer  of  ten  per  cent  more  in  amount  than  that 
named  in.  the  return  be  made  to  the  court,  in 
writing,  by  a  responsible  person,  it  is  in  the  dis- 
cretion of  the  court  to  accept  such  offer  and  con- 
firm the  sale  to  such  person,  or  to  order  a  new 
sale.  [Amendment  approved  March  23,  1891; 
Stats.  1891,  p.  427.] 

Sales  under  will:  See.  1561. 

Notice  of  petition  for  confirmation  of  sale,  de- 
scription of  property  by  reference  in:  Sec.  1712. 

Attorney,  court  may  appoint,  to  represent  party: 
Sec.  1718. 

§  1553.  When  return  of  the  sale  is  made  and 
filed,  any  person  interested  in  the  estate  may  file 
Avritten  objections  to  the  confirmation  thereof, 
and  may  be  heard  thereon,  when  the  return  is 
lieard  by  the  court  or  judge,  and  may  produce 
Avitnesses  in  support  of  liis  objections. 

§  1554.  If  it  appears  to  the  court  that  the  sale 
was  legally  made  and  fairly  conducted,  and  that 


§  1555.  SALES    AND    CONVEYANCES.  C04 

the  Slim  bid  was  not  disproportionate  to  the  value 
of  the  property  sold,  and  that  a  greater  sum,  as 
above  speciiied,  cannot  be  obtained,  or  if  the  in- 
creased bid  mentioned  in  section  fifteen  hundred 
and  fifty-two  be  made  and  accepted  by  the  court, 
the  court  must  make  an  order  confirming  the  sale, 
and  directing  conveyances  to  be  executed.  The 
sale,  from  that  time,  is  confirmed  and  valid,  and 
a  certified  copy  of  the  order  confirming  it  and  di- 
recting conveyances  to  be  executed,  must  be  re- 
corded in  the  olfice  of  the  recorder  of  the  county 
in  which  the  land  sold  is  situated.  If,  after  the 
confirmation,  tlie  purcliased  neglects  or  refuses 
to  comply  Avith  the  t^rms  of  sale,  the  court  may, 
on  motion  of  the  executor  or  administrator,  and 
after  notice  to  the  purchaser,  order  a  resale  to  be 
jnade  of  tlie  property.  If  the  amount  realized  on 
such  resale  does  not  cover  the  bid  and  the  expens- 
es of  the  previous  sale,  such  purchaser  is  liable 
fur  the  deficiency  to  the  estate. 

Proof  of  notice  before  sale  and  recital  in:  Sec. 
1556;  recording  certified  copy,  sec.  1719. 

§  1555.  Conveyances  must  thereupon  be  exe- 
cuted to  the  purchaser  by  the  executor  or  admin- 
istrator, and  they  must  refer  to  the  orders  of  the 
CO  art  authorizing  and  confirming  the  sale  of  the 
property  of  tlie  estate,  and  directing  conveyances 
thereof  to  be  executed,  and  to  the  record  of  the 
order  of  confirmation  in  the  olfice  of  the  county 
recorder,  either  by  the  date  of  such  recording,  or 
by  tlie  date,  volume,  and  page  of  the  record,  and 
such  reference  shall  have  the  same  effect  as  if 
the  orders  were  at  large  inserted  in  the  convey- 
ance. Conveyances  so  made  convey  all  the  right, 
title,  interest,  and  estate  of  the  decedent  in  the 
premises,  at  the  time  of  his  death;  if  prior  to  the 
sale,  by  operation  of  law  or  otherwise,  the  estate 
has  acquired  any  right,  title,  or  interest  in  the 
premises,  oilier  than  or  in  addition  to  that  of  the 


605  SALES    AND    CONVEYANCES.        §§  155G-1560 

decedent  at  the  time  of  his  death,  such  right,  title, 
or  interest,  also  passes  bj^  sucli  conveyances. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  p.  96.    In  effect  April  16,  1880.] 

§  1556.  Before  any  order  is  entered  confirming 
the  sale,  it  must  be  proved  to  the  satisfaction  of 
the  court  that  notice  was  given  of  the  sale  as  pre- 
scribed, and  the  order  of  confirmation  must  show 
that  such  proof  was  made. 

Notice  of  sale,  generally:  Sees.  1547,  1549. 

§  1557.  If,  at  the  time  appointed  for  the  sale, 
the  executor  or  administrator  deems  it  for  the  in- 
terest of  all  persons  concerned  therein  that  the 
same  be  postponed,  he  may  postpone  it  from  time 
to  time,  not  exceeding  in  all  three  months. 

§  1558.  In  case  of  a  postponement,  notice 
thereof  must  be  given,  by  a  public  declaration,  at 
the  time  and  place  first  appointed  for  the  sale, 
and  if  the  postponement  be  for  more  than  one 
day,  further  notice  must  be  given,  by  posting  no- 
tices in  three  or  more  public  places  in  the  county 
where  the  land  is  situated,  or  publishing  the 
same,  or  both,  as  the  time  and  circumstances  will 
admit. 

Publishing  notice:  Sec.  1705. 

§  1559.  [Repealed  March  24,  1874;  Amend- 
ments 1873-4,  p.  371;  took  effect  July  1,  1874.] 

§  1560.  If  the  testator  malces  provision  by  his 
will,  or  designates  the  estate  to  be  appropriated 
for  the  payment  of  his  debts,  the  expenses  of  ad- 
ministration, or  family  expenses,  they  must  be 
paid  according  to  such  provision  or  designation, 
out  of  the  estate  thus  appropriated,  so  far  as  the 
same  is  sufficient. 

Insufiicient  provision,  in     will,   effect     of:   Sec. 


§§  1561-1564        SALES    AND    CONVEYANCES.  606 

Payment  of  debts  and  expenses,  generallj-:  Sec. 
1516. 
Order  of  appropriation:  Civil  Code,  sec.  1359. 

§  1561.  Wlien  property  is  directed  by  the  will 
to  be  sold,  or  authority  is  given  in  the  will  to  sell 
property,  the  executor  may  sell  any  property  of 
the  estate  Avithout  order  of  the  court,  and  at  either 
public  or  private  sale,  and  with  or  without  no- 
tice, as  the  executor  may  determine;  but  the  exec- 
utor must  make  return  of  such  sales,  as  in  other 
cases;  and  if  directions  are  given  in  the  will  as 
to  the  mode  of  selling,  or  the  particular  proper- 
ty to  be  sold,  such  directions  must  be  observed. 
In  either  case  no  title  passes  unless  the  sale  be 
confirmed  by  the  court.  [Amendment  approved 
April  16.  1880;  Amendments  1880,  p.  95.  In  ef- 
fect April  16,  1880.] 

§  1562.  If  the  provision  made  by  the  will,  or 
the  estate  appropriated  therefor,  is  insufficient  to 
pay  the  debts,  expenses  of  administration,  and 
family  expenses,  that  portion  of  the  estate  not  de- 
vised or  disposed  of  by  the  will,  if  any.  must  be 
appropriated  and  disposed  of  for  that  purpose,  ac- 
cording to  the  provisions  of  this  chapter. 

§  1563.  The  estate,  real  and  personal,  given  by 
will  to  legatees  or  devisees,  is  liable  for  the  debts, 
expenses  of  administration,  and  family  expenses, 
in  proportion  to  the  value  or  amount  of  the  sev- 
eral devises  or  legacies;  but  specific  devises  or  leg- 
acies are  exempt  from  such  liability,  if  it  appears 
to  the  court  necessary  to  carry  into  effect  the  in- 
tention of  the  testator,  and  there  is  other  sufficient 
estate. 

Keal  and  personal  property,  alike  chargeable: 
8ec.  1516. 

§  1564.  When  an  estate  given  by  will  has  been 
sold   for  the  payment  of  debts   or   (wpenses,   all 


607  SALES    AND    CONVEYANCES.        §§  1565-1567 

the  devisees  and  legatees  must  contribute  accord- 
ing- to  their  respective  interests  to  the  devisee  or 
legatee  whose  devise  or  legacy  has  been  taken 
therefor,  and  the  court,  when  distribution  is  made, 
must,  by  decree  for  that  purpose,  settle  the 
amount  of  the  several  liabilities,  and  decree  the 
amount  each  person  shall  contribute,  and  reserve 
the  same  from  their  distributive  shares,  respec- 
tivel5%  for  the  purpose  of  paying  such  contribu- 
tion. [Amendment  approved  April  16,  1880: 
Amendments  1880,  p.  97.    In  effect  April  16,  1880.] 

§  1565.  If  a  decedent,  at  the  time  of  his  death, 
was  possessed  of  a  contract  for  the  purchase  of 
lands,  his  interest  in  such  land  and  under  such 
contracts  may  be  sold  on  the  app^cation  of  his 
executor  or  administrator,  in  the  same  manner  as 
if  he  had  died  seised  of  such  land;  and  the  same 
proceedings  may  be  had  for  that  purpose  as  are 
prescribed  in  this  chapter  for  the  sale  of  lands 
of  which  he  died  seised,  except  as  hereinafter  pro- 
vided. 

§  1566.  The  sale  must  be  made  subject  to  all 
payments  that  may  thereafter  become  due  on  such 
contracts,  and  if  there  are  any  such,  the  sale  must 
not  be  confirmed  by  the  court  until  the  purchas- 
ers execute  a  bond  to  the  executor  or  administra- 
tor for  the  benefit  and  indemnity  of  himself  and 
of  the  persons  entitled  to  the  interest  of  the  de- 
cedent in  the  lands  so  contracted  for,  in  double 
the  whole  amount  of  payments  thereafter  to  be- 
come due  on  such  contract,  with  such  sureties  as 
tlie  court  or  judge  shall  approve.  [Amendment 
approved  April  16,  1880;  Amendments  1880,  p.  97. 
In  effect  April  16,  1880.] 

§  1567.  The  bond  must  be  conditioned  that  the 
purchaser  will  make  all  payments  for  such  land 
that  become  due  after  the  date  of  the  sale,  and 


§§  1568,  1569      SALES     AND     CONVEYANCES.  608 

will  fully  indemnify  the  executor  or  administrator 
and  the  persons  so  entitled,  against  all  demands, 
costs,  charges,  and  expenses,  by  reason  of  any 
covenant  or  agreement  contained  in  such  con- 
tract. 

§  1568.  Upon  the  confirmation  of  the  sale,  the 
executor  or  administrator  must  execute  to  the  pur- 
chaser an  assignment  of  the  contract,  which  vests 
in  the  purchaser,  his  heirs  and  assigns,  all  the 
right,  title,  and  interest  of  the  estate,  or  of  the 
persons  entitled  to  the  interest  of  the  decedent, 
in  the  lands  sold  at  the  time  of  the  sale;  and  the 
purchaser  has  the  same  rights  and  remedies 
against  the  vendor  of  such  land  as  the  decedent 
would  have  had  if  he  were  living. 

§  1569.  When  any  sale  is  made  by  an  executor 
or  administrator,  pursuant  to  provisions  of  this 
chapter,  of  lands  subject  to  any  mortgage  or  oth- 
er lien,  which  is  a  valid  claim  against  the  estate 
of  the  decedent,  and  has  been  presented  and  al- 
lowed, the  purchase  money  must  be  applied,  af- 
ter paying  the  necessary  expenses  of  the  sale, 
first,  to  the  payment  and  satisfaction  of  the  mort- 
gage or  lien,  and  the  residue,  if  any,  in  due  course 
of  administration.  The  application  of  the  pur- 
chase money  to  the  satisfaction  of  the  mortgage  or 
lien  must  be  made  without  delay;  and  the  land  is 
subject  to  such  mortgage  or  lieu  until  the  pur- 
chase money  has  been  actually  so  applied.  No 
claim  against  any  estate,  which  has  been  present- 
ed and  allowed,  is  affected  by  the  statute  of  limi- 
tations, pending  the  proceedings  for  the  settle- 
ment of  the  estate.  The  purchase  money,  or  so 
much  thereof  as  may  be  sufficient  to  pay  such 
mortgage  or  lien,  with  interest,  and  any  lawful 
costs  and  charges  thereon,  may  be  paid  into  the 
court,  to  be  received  by  the  clerlv  thereof,  Avhere- 
upon  the  mortgage  or  lien  upon  the  land   must 


609  SALES    AND    CONVEYANCES.        §§  1570-1572 

cease  and  the  purchase  money  must  be  paid  over 
by  the  clerk  of  the  court  without  delay,  in  pay- 
ment of  the  expenses  of  the  sale,  and  in  satisfac- 
tion of  the  debt  to  secure  which  the  mortgage  or 
other  lieu  was  taken,  and  the  surplus,  if  any,  at 
once  returned  to  the  executor  or  administrator, 
unless  for  good  cause  shown,  after  notice  to  the 
executor  or  administrator,  the  court  otherwise  di- 
rects. [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  97.  In  effect  April  16, 
1880.] 

Valid  claim,  against  estate  of  decedent:  See 
sees.  1493,  1497,  1500. 

Paid  into  court:  See  sees.  572-74,  2104. 

§  1570.  At  any  sale,  under  order  of  the  court, 
of  lands  upon  which  there  is  a  mortgage  or  lien, 
the  holder  thereof  may  become  the  purchaser, 
and  his  receipt  for  the  amount  due  him  from  the 
proceeds  of  the  sale  is  a  payment  pro  tanto.  If 
the  amount  for  which  he  purchased  the  property 
is  insufficient  to  defray  the  expenses  and  dis- 
charge his  mortgage  or  lien,  he  must  pay  to  the 
court,  or  the  clerk  thereof,  an  amount  sufficient 
to  pay  such  expenses.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  p.  97.  In  effect 
April  16,  1880.] 

§  1571.  If  there  is  any  neglect  or  misconduct 
in  the  proceedings  of  the  executor  in  relation  to 
any  sale,  by  which  any  person  interested  in  the 
estate  suffers  damage,  the  party  aggrieved  may  re- 
cover the  same  in  an  action  upon  the  bond  of  the 
executor  or  administrator,  or  otherwise. 

Bond  of  exeeutor,  etc.:  Sec.  1388. 

§  1572.  Any  executor  or  administrator  who 
fraudulently  sells  any  real  estate  of  a  decedent 
contrary  to  or  otherwise  than  under  the  provis- 
ions of  this  chapter,  is  liable  in  double  the  value 


§§  1573-1575       SALES   AND    CONVEYANCES.  610 

of  the  land  sold,  as  liquidated  damages,  to  be  re- 
covered in  an  action  by  the  person  having  an  es- 
tate of  inheritance  therein. 
Prohibited  connection  with  sale:  Sec.  1576. 

§  1573.  No  action  for  the  recovery  of  any  es- 
tate sold  by  an  executor  or  administrator,  under 
the  provisions  of  this  chapter,  can  be  maintained 
by  any  heir  or  other  person  claiming  under  the 
decedent,  unless  it  be  commenced  within  three 
years  next  after  the  settlement  of  the  final  ac- 
count of  the  executor  or  administrator.  An  ac- 
tion to  set  aside  the  sale  may  be  instituted  and 
maintained  at  any  time  within  three  years  from 
the  discovery  of  the  fraud,  or  other  grounds  up- 
on which  the  action  is  based.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  p.  112. 
In  effect  April  16,  1880.1 

Persons  under  disability,  provision  inapplicable 
to:  See  sec.  1574. 

Discovery  of  the  fraud,  within  three  years  of: 
See  sec.  338,  subd.  4. 

§  1574.  The  preceding  section  shall  not  apply 
to  minors  or  others  under  any  legal  disability  to 
sue  at  the  time  when  the  right  of  action  first  ac- 
crues; but  all  such  persons  may  commence  an  ac- 
tion at  any  time  within  three  years  after  the  re- 
moval of  the  disability. 

§  1575.  When  a  sale  has  been  made  by  an  ex- 
ecutor or  administrator  of  any  property  of  the  es- 
tate, real  or  personal,  he  must  return  to  the  court, 
within  thirty  days  thereafter,  an  account  of  sales, 
verified  by  his  affidavit,  or  in  case  of  his  absence 
from  tlio  county,  or  other  inability,  by  the  affida- 
vit of  his  attorney.  If  he  neglects  to  mal^e  such 
return,  he  may  be  punished  by  attachment,  or  his 
lotters  may  be  revolted,  one  day's  notice  having 
been  first  given  him  to  appear  and  show  cause 


311  SALES   AND   CONVEYANCES.       §§  1576,  1577 

Avhy  such  attaclimeiit  sli(,ul(l  not  issue,  or  such  re- 
vocatiou  should  uot  be  made.  [Approved  March 
3,  1897;  Stats.  1897,  ch.  60.  In  effect  immediate- 
ly.] 

Attachment  for  contempt:   Sec.   1212  et  seq. 

Notice  by  citation:  Sec.  1710;  also,  sees.  1707- 
1709. 

§  1576.  No  executor  or  administrator  must,  di- 
rectly or  indirectly,  purchase  any  property  of  the 
estate  he  represents,  nor  must  he  be  interested  in 
any  sale. 

Purchase  by  administrator,  etc.,  forbidden: 
Sec.  1617. 

ARTICLE  V. 

[New  article  added  March  15,  1887,   Stats.  1887. 
p.  115.] 

MORTGAGES   AND   LEASES   OF   REAL  ESTATE. 

§  1577.    Mortgage    of   real   property   of   decedent. 
§  1578.    Proceedings  to  obtain  order. 
§  1579.    To  obtain  lease  of  realty. 

§  1577.  Whenever  in  any  estate  now  being  ad- 
ministered or  that  may  liereafter  be  administered 
it  shall  appear  to  the  Superior  Court,  or  a  judge 
thereof,  to  be  for  the  advantage  of  the  estate  to 
raise  money  upon  a  note  or  notes,  to  be  secured 
by  a  mortgage  of  the  real  property  of  any  dece- 
dent, or  of  a  minor,  or  an  incompetent  person,  or 
any  part  thereof,  or  to  make  a  lease  of  said  realty 
(»r  any  part  thereof,  the  court  or  judge,  as  often  as 
occasion  therefor  shall  arise  in  the  administration 
of  any  estate,  may.  on  a  petition,  notice,  and  hear- 
ing as  provided  in  this  article,  authorize,  empow- 
er, and  direct  the  executor  or  administrator  or 
or  guardian  of  such  minor  or  incompetent  person 
10  mortgage  such  real  estate  or  any  part  thereof, 
and  to  execute  a  note  or  notes  to  be  secured  by 


§  1578  SALES    AND    CONVEYANCES.  612 

such  mortgage,  or  to  lease  such  real  estate  or 
any  part  thereof.  [Amendmeut  approved  March 
3,  1893;  Stats.  1893,  p.  72;  in  effect  immediately.] 

This  section  was  also  amended  1891  (Stats.  1891, 
p.  247.) 

§  1578.  To  obtain  an  order  to  mortgage  such 
realty,  the  proceedings  to  be  taken  and  the  effect 
thereof  shall  be  as  follows: 

First.  The  executor  or  administrator  of  any  es- 
tate, or  guardian  of  any  minor  or  incompetent 
person,  or  any  person  interested  in  the  estates  of 
such  decedents,  minors,  or  incompetent  persons, 
may  file  a  verified  petition  showing: 

1.  The  particular  purpose  or  purposes  for  which 
it  is  proposed  to  make  the  note  or  notes  and  mort- 
gage, which  shall  be  either  to  pay  the  debts,  leg- 
acies, or  charges  of  administration,  or  to  pay,  re- 
duce, extend,  or  renew  some  lien  or  mortgage  al- 
ready subsisting  in  said  realty  or  some  part  there- 
of. 

2.  A  statement  of  the  debts,  legacies,  charges  of 
administration,  liens  or  mortgages  to  be  paid,  re- 
duced, extended,  or  renewed,  as  the  case  may 
be. 

3.  The  advantage  that  may  accrue  to  the  estate 
from  raising  the  required  money  by  note  or  notes 
and  mortgage  or  providing  for  the  payment,  re- 
duction, extension,  or  renewal  of  the  subsisting 
liens  or  mortgages,  as  the  case  may  be. 

4.  The  amount  to  be  raised,  with  a  general  de- 
scription of  the  property  proposed  to  be  mort- 
gaged; and, 

5.  The  names  of  the  legatees  and  devisees,  if 
any,  and  of  the  heirs  of  the  deceased,  or  of  the 
minor,  or  of  the  incompetent  person,  as  the  case 
may  be,  so  far  as  known  to  the  petitioner. 

Second.  Upon  filing  such  petition,  an  order 
shall  be  made  by  the  court  or  judge,  requiring  all 


613  SAI.ES    AND    CONVEYANCES.  §  157S 

persons  interested  in  the  estate  to  appear  before 
the  court  or  judge,  at  a  time  and  place  specified, 
not  less  than  four  nor  more  than  ten  weeks  there- 
after, then  and  there  to  show  cause  why  the  real- 
ty (briefly  indicating  it),  or  some  part  thereof, 
should  not  be  mortgaged  for  the  amount  men- 
tioned in  the  petition  (stating  such  amount),  or 
such  lesser  amount  as  to  the  court  or  judge  shall 
seem  meet,  and  referring  to  the  petition  on  file 
for  further  particulars. 

Third.  The  order  to  show  cause  may  be  person- 
ally served  on  the  persons  interested  in  the  estate, 
at  least  ten  days  before  the  time  appointed  for 
hearing  the  petition,  or  may  be  published  for  four 
successive  weeks  in  a  newspaper  of  general  cir- 
culation, published  in  the  county. 

Fourth.  At  the  time  and  at  the  place  appointed 
in  the  order  to  show  cause,  or  at  such  other  time 
and  place  to  which  the  hearing  may  be  postponed 
(the  power  to  make  all  needful  postponements  be- 
ing hereby  vested  in  the  court  or  judge),  having 
first  received  satisfactory  proof  of  personal  ser- 
vice or  publication  of  the  order  to  show  cause,  the 
court  or  judge  must  proceed  to  hear  the  petition 
and  any  objections  that  may  be  filed  or  presented 
thereto.  Upon  such  hearing,  witnesses  may  be 
compelled  to  attend  and  testify,  in  the  same  man- 
ner, and  with  like  effect,  as  in  other  cases;  and  if, 
after  a  full  hearing,  the  court  or  judge  is  satis- 
fied that  it  will  be  for  the  advantage  of  the  estate 
to  mortgage  the  whole  or  any  portion  of  the  real 
estate,  an  order  must  be  made  authorizing,  em- 
powering, and  directing  the  executor  or  adminis- 
trator, or  the  guardian  of  such  minor  or  incompe- 
tent person,  to  mal^e  such  mortgage,  and  a  promis- 
sory note  or  notes  to  the  lender,  ^'or  the  amount  of 
the  loan,  to  be  s(^cured  by  said  mortgage;  the  or- 
der may  direct  that  a  lesser  amount  than  that 
named  in  the  petition  be  borrowed,  and  may  pre- 
cede Civ.   Proc— 52. 


;§  1578  SALES    AND    CONVEYANCES.  <;i-f 

scribe  the  maximum  rate  of  interest  and  period 
of  tlie  loan,  and  may  direct  in  what  coin  or  cur- 
rency it  sliall  be  paid,  and  require  tliat  the  interest 
and  the  whole  or  any  part  of  the  principal  be  paid, 
from  time  to  time,  out  of  the  whole  estate  or  any 
part  thereof,  and  that  any  buildings  on  the  prem- 
ises to  be  mortgaged  shall  be  insured  for  further 
security  of  the  lender,  and  the  premiums  paid 
from  such  income. 

Fifth.  After  the  making  of  the  order  to  mort- 
gage, the  executor,  administrator,  or  guardian  of 
a  minor  or  of  an  incompetent  person  shall  exe- 
cute and  deliver  a  promissory  note  or  notes  for  the 
amount  and  period  specified  in  the  order,  and  shall 
execute,  acknowledge,  and  deliver  a  mortgage  of 
tlie  premises,  setting  forth  in  the  mortgage  that 
it  is  made  by  authority  of  the  order,  and  giving 
the  date  of  such  order.  A  certified  copy  of  the  or- 
der shall  be  recorded  in  the  office  of  the  county 
recorder  of  every  county  in  which  the  encumbered 
land,  or  any  portion  thereof,  lies.  The  note  or 
notes  and  mortgage  shall  be  signed  by  the  exec- 
utor, administrator,  or  guardian  as  such,  and  shall 
create  no  personal  liability  against  the  person  so 
signing. 

Sixth,  Every  note  or  notes  and  inortgage  so 
made  shall  be  effectual  to  mortgage  and  hypoth- 
ecate all  the  right,  title,  interest,  and  estate  which 
the  decedent,  minor,  or  incompetent  person  had 
in  the  premi8es  descri])ed  therein  at  the  time  of 
the  death  of  such  decedent,  or  at  the  time  of  the 
appointment  of  the  guardian  of  such  minor  or  of 
such  incompetent  person,  or  prior  thereto,  and  any 
right,  title,  or  interest  in  said  premises  acquired 
by  the  estate  of  such  decedent,  minor,  or  incom- 
petent person,  by  operation  of  law  or  otherwise, 
since  the  time  of  the  death  of  such  decedent,  or 
the  ap])ointment  of  the  guardian  of  such  minor  or 
incompetent  person.  Jurisdiction  of  the  court  to 
administer  the   estate  of   such   decedent,   minor. 


615  SALES    AND    CONVEYANCES.  §  1578 

or  incompetent  person  shall  be  effectual  to  vest 
such  court  and  judge  with  jurisdiction  to  make 
the  order  for  the  note  or  notes  and  mortgage,  and 
such  jurisdiction  shall  conclusively  inure  to  the 
benefit  of  the  mortgagee  named  in  the  mortgage, 
his  heirs  and  assigns.  No  iregularity  in  the  pro- 
ceedings shall  impair  or  invalidate  the  same  or 
the  note  or  notes  and  mortgage  given  in  the  pur- 
suance thereof,  and  the  mortgagee,  his  heirs  ana 
assigns,  shall  have  and  possess  the  same  rights 
and  remedies  on  the  note  or  notes  and  mortgage 
as  if  it  had  been  made  by  the  decedent  prior  to 
his  death,  the  minor  after  reaching  the  age  of  ma- 
turity, or  the  incompetent  person  when  legally 
competent;  provided,  however,  that  upon  any  fore- 
closure, if  the  proceeds  of  the  encumbered  prop- 
erty are  insufficient  to  pay  the  note  or  notes,  and 
mortgage,  no  judgment  or  claim  for  any  deficien- 
cy of  such  proceeds  to  satisfy  the  note  or  notes 
and  mortgage,  or  the  costs  or  expenses  of  sale, 
shall  be  had  or  allowed,  except  in  cases  where 
the  note  or  notes  and  mortgage  were  given  to  pay. 
reduce,  extend,  or  renew  a  lien  or  mortgage  sub- 
sisting on  the  realty,  or  some  part  thereof,  at  the 
time  of  the  death  of  the  decedent,  and  the  indebt- 
edness secured  by  such  lien  or  mortgage  was  an 
allowed  and  approved  claim  against  his  estate,  or 
a  lien  upon  the  interest  of  the  minor  in  said  real 
estate  at  the  time  it  vested  in  him,  or  upon  the 
estate  of  the  incompetent  at  the  time  the  incompe- 
tency of  the  incompetent  person  was  so  declared 
by  the  court;  and  provided  also,  that  in  cases  af- 
fecting the  estate  of  the  deceased  persons,  the  part 
of  the  indebtedness  remaining  unsatisfied  must 
be  classed  and  paid  with  other  demands  against 
the  estate,  as  provided  in  article  three,  chapter 
ten,  of  title  eleven,  part  three,  of  this  code,  with 
respect  to  mortgages  subsisting  at  the  time  of 
death.  [Amendment  api>roved  March  3,  1S93; 
Stats.  1893,  p.  72;  in  effect  immediately.] 


^  1579  SALES    AND    CONVEYANCES.  616 

This  section  was  also  amended  in  1887;  Stats. 
1887,  p.  115;  and  in  1891,  Stats.  1891,  p.  247. 

§  1579.  To  obtain  an  order  to  lease  the  realty, 
the  proceedings  to  be  tal^en  and  the  effect  thereof 
shall  be  as  follo^Ys: 

First.  The  executor,  administrator,  guardian  of 
a  minor  or  of  an  incompetent  person,  or  any  per- 
son interested  in  the  estates  of  such  decedents, 
minors,  or  incompetent  persons,  may  file  a  verified 
petition  showing: 

1.  The  advantage  or  advantages  that  may  ac- 
crue to  the  estate  from  giving  a  lease. 

2.  A  general  description  of  the  property  pro- 
posed to  be  leased. 

3.  The  term,  rental,  and  general  conditions  of 
the  proposed  lease. 

4.  The  names  of  the  legatees  and  devisees,  if 
any,  and  of  the  heirs  of  the  deceased,  or  of  the 
minor,  or  of  the  incompetent  person,  so  far  as 
knoAvn  to  the  petitioner. 

Second.  Upon  filing  such  petition  an  order  shall 
be  made  by  the  court  or  judge  requiring  all  per- 
sons interested  in  the  estate  to  appear  before  the 
court  or  judge,  at  a  time  and  place  specified,  not 
less  than  two  nor  more  than  four  weeks  thereafter, 
then  and  there  to  show  cause  why  the  realty 
(briefly  indicating  it)  should  not  be  leased  for  the 
period  (stating  it),  at  the  rental  mentioned  in  the 
petition  (stating  it),  and  referring  to  the  petition 
on  file  for  further  particulars. 

Third.  The  order  to  show  cause  may  be  per- 
sonally served  on  the  persons  interested  in  the  es- 
tate at  least  ten  days  before  the  time  appointed 
for  hearing  the  petition,  or  it  may  be  published 
for  two  successive  weeks  in  a  newspaper  of  gener- 
al circulation  in  the  county. 

Fourth.  At  the  time  and  place  appointed  to 
sliow  cause,  or  at  such  otlier  time  and  place  to 
wliicli  tlie  hearing  may  be  postponed  (the  power 


617  SALES    AND    CONVEYANCES.  §  1579 

to  make  all  needful  postponements  being  hereby 
vested  in  tlie  court  or  judge),  the  court  or  judge 
having  first  received  satisfactory  proof  of  per- 
sonal service  or  publication  of  the  order  to  show 
cause,  must  proceed  to  hear  the  petition,  and  any 
objections  that  may  have  been  tiled  or  presented 
thereto.  Upon  such  hearing,  witnesses  may  be 
compelled  to  attend  and  testify  in  the  same  man- 
ner and  with  like  effect  as  in  other  cases,  and  the 
court  may,  in  its  discretion,  appoint  one  or  more, 
not  exceeding  three,  disinterested  persons  to  ap- 
praise the  rental  value  of  the  premises,  and  di- 
rect that  a  reasonable  compensation  for  the  ser- 
vices, not  exceeding  five  dollars  per  day,  be  paid 
by  the  estate.  If,  after  a  full  hearing,  the  court 
or  judge  is  satisfied  that  it  will  be  for  the  advan- 
tage of  the  estate  to  lease  the  whole  or  any  por- 
tion of  the  real  estate,  an  order  must  be  made  au- 
thorizing, empowering,  and  directing  the  executor, 
administrator,  or  the  guardian  to  make  such 
lease.  The  order  may  prescribe  the  minimum 
rental  to  be  received  for  the  premises,  and  the  pe- 
riod of  the  lease,  which  must  in  no  case  be  longer 
than  for  five  years,  and  may  prescribe  the  other 
terms  and  conditions  of  such  lease. 

Fifth.  After  the  making  of  the  order  to  lease, 
the  executor,  administrator,  or  guardian  of  a  mi- 
nor or  of  an  incompetent  person  shall  execute,  ac- 
knowledge, and  deliver  a  lease  of  the  premises  for 
the  term  and  period  and  with  the  conditions  spe- 
cified in  the  order,  setting  forth  in  the  lease  that 
it  is  made  by  authority  of  the  order,  and  giving 
the  date  of  such  order.  A  certified  copy  of  the  or- 
der shall  be  recorded  in  the  otfice  of  the  county 
recorder  of  every  county  in  which  the  leased  land 
or  any  portion  thereof  lies. 

Sixth.  Every  lease  so  made  shall  be  effectual 
to  demise  and  let,  at  the  rent,  for  tlie  term,  and 
upon  the  conditions  therein  prescribed,  the  prem- 


.^  1581  POWERS    AND    DUTIES.  618 

ises  described  therein.  Jiirisdictiou  of  tlie  court 
to  administer  tlie  estate  of  the  decedent,  the  mi- 
nor, or  of  the  incompetent  person  shall  be  effectu- 
al to  vest  such  court  and  judge  with  jurisdiction 
to  make  the  order  for  the  lease,  and  such  jurisdic- 
tion shall  conclusively  inure  to  the  benefit  of  the 
lessee,  his  heirs  and  assigns.  No  omission,  error, 
or  irregularity  in  the  proceedings  shall  impair  or 
invalidate  the  same,  or  the  lease  made  in  pursu- 
ance thereof.  [Amendment  approved  March  31,^ 
1891;  Stats.  1891,  p.  249.] 

This  section  was    also    amended    in  1887;  Stats. 
1887,  p.  117. 


CHAPTER  VIII. 

OI^   THE   POWERS  AND    DUTIES    OF   EXECUTORS   AND 
ADMINISTRATORS,  AND  OF  THE  MANAGE- 
MENT OF   ESTATES. 

.§  1581.    Executors  to  take  possession  of  the  entire  estate. 
§  1582.    Executors   may   sue   and   be    sued    for   recovery    of 

property. 
§  1583.     May    maintain    actions   for    waste,    conversion,    and 

trespass. 
§  1584.    Executor  and  administrator  may  be  sued  for  waste 

or  trespass  of  decedent. 
§  1585.     Surviving   partner   to    settle    up    business.      Interest 

therein  to  be  appraised.     Account  to  be  rendered. 
§  1586.    Actions  on  bond  of  executor  or  administrator  may 

be  brought  by  another  administrator. 
§  1587.    What  executors  are  not  parties  to  actions. 
S  1588.     May  compound. 
§  1589.     Recovery   of   property  fraudulently   disposed   of  by 

testator. 
§  1590.    When  executor  to  sue,  as  provided  in  preceding  sec- 
tion. 
§  1591.    Disposition  of  estate  recovered. 

§  1581.  The  executor  or  administrator  must 
talvc  into  his  possession  all  the  estate  of  the  de- 
cedent, real  and  personal,  and  collect  all  debts  due 
to  the  decedent  or  to  the  estate.     For  the  purpose 


619  POWERS    AND    DUTIES.  §  15S:',  15^S 

of  bnugiug-  suits  to  quiet  title,  or  for  partition  of 
sucli  estate,  the  possession  of  the  executors  or  ad- 
ministrators is  the  possession  of  the  heirs  or  de- 
visees; such  possession  by  the  heirs  or  devisees  is 
subject,  however,  to  the  possession  of  the  executor 
or  administrator,  for  the  purposes  of  administra- 
tion, as  provided  in  this  title. 

Possession  of  estate  by  executor,  etc.:  Sec.  1452. 

Collection  of  debts,  when  no  liability  for  fail- 
ure: Sec.  1G15. 

Executor  or  administrator,  suits  by  and  against: 
Sees.  1582-1584,  1585-1587,  1589,  1590. 

Heir  may  maintain  ejectment  and  suit  to  quiet 
title  during  possession  of  executor,  etc.:  Sees. 
1452,  738. 

§  1582.  Actions  for  the  recovery  of  any  proper- 
ty, real  or  personal,  or  for  the  possession  thereof, 
or  to  quiet  title  thereto,  or  to  determine  any  ad- 
verse claim  thereon,  and  all  actions  founded  upon 
contracts,  may  be  maintained  by  and  against  ex- 
ecutors and  administrators  in  all  cases  in  which 
the  same  might  have  been  maintained  by  or 
against  their  respective  testators  or  intestates. 
[Amendment  approved  March  26,  1895;  Stats. 
1895,  p.  80.     In  effect  March  26,  1895.] 

Executors  and  administratox's — Suits  by,  after 
substitution,  sec.  385;  without  joining  beneficia- 
ries, sec.  369.    Suits  against,  costs,  sec.  1509. 

Suggestion  of  death  where  action  by  deceased 
pending:  Sec.  385. 

The  right  to  maintain  suits  for  the  possession  of 
The  real  property  of  the  estate:  See  sec.  1452,  ante. 

§  1583.  Executors  and  administrators  maj' 
maintain  actions  against  any  person  who  has 
wasted,  destroyed,  taken,  or  carried  away,  or  con- 
verted to  his  own  use,  the  goods  of  their  testator 


§§    1581,  1586  POWERS    AND    DUTIES.  620 

or  intestate,  in  bis  lifetime.  Tliey  may  also  main- 
tain actions  for  trespass  committed  on  the  real 
estate  of  the  decedent  in  liis  lifetime. 

§  1584.  Any  person  or  his  personal  representa- 
tives may  maintain  an  action  against  the  executor 
or  administrator  of  any  testator  or  intestate  who 
in  his  lifetime  has  wasted,  destroyed,  talven,  or 
carried  away,  or  converted  to  his  oAvn  use,  the 
goods  or  chattels  of  any  such  person,  or  committed 
any  trespass  on  the  real  estate  of  such  person. 

§  1585.  AVhen  a  partnership  exists  between  the 
decedent,  at  the  time  of  his  death,  and  any  other 
person,  the  surviving  partner  has  the  right  to  con- 
tinue in  possession  of  the  partnership,  and  to  set- 
tle its  business,  but  the  interest  of  the  decedent 
in  the  partnership  must  be  included  in  the  in- 
ventory,  and  be  appraised  as  other  property.  The 
surviving  partner  must  settle  the  affairs  of  the 
partnership  without  delay,  and  account  with  the 
executor  or  administrator,  and  pay  over  such  bal- 
ances as  may  from  time  to  time  be  payable  to  him, 
in  right  of  the  decedent.  Upon  the  application  of 
the  executor  or  administrator,  the  court,  or  a  judge 
tliereof,  may,  whenever  it  appears  necessary,  or- 
der the  surviving  partner  to  render  an  account, 
and  in  case  of  neglect  or  refusal  may,  after  no- 
tice, compel  it  by  attachment;  and  the  executor- 
or  administrator  may  maintain  against  him  any 
action  which  the  decedent  could  have  maintained. 
[Amendment  approved  April  10.  1880:  Amend- 
ments 1880,  p.  98.    In  effect  April  16,  1880.] 

Interest  of  decedent,  in  partnership,  may  be 
sold:  Sec.  1524. 

§  1586.  An  administrator  may,  in  his  own 
name,  for  the  use  and  benefit  of  all  parties  inter- 
ested in  the  estate,  maintain  actions  on  the  bond 


621  POWERS    AND    DUTIES.  §§  7,  1589158 

of  an  executor,  ©r     of  any  former  administrator 
of  the  same  estate. 

Bond  of  executor  or  administrator:  Sec.  1388  et 
seq. 

§  1587.  In  actions  by  or  against  executors,  it 
is  not  necessary  to  join  those  as  parties  to  whom 
letters  were  issued,  but  who  have  not  qualified. 

Defendants  joined  in  actions:  Sees.  379,  382. 

§  1588.  Whenever  a  debtor  of  the  decedent  is 
unable  to  pay  all  his  debts,  the  executor  or  ad- 
ministrator, with  the  approbation  of  the  court, 
or  a  judge  thereof,  may  compound  with  him  and 
give  him  a  discharge,  upon  receiving  a  fair  and 
just  dividend  of  his  effects.  A  compromise  may 
also  be  authorized  when  it  appears  to  be  just, 
and  for  the  best  interest  of  the  estate.  [Amend- 
ment approved  April  IG,  1880;  Amendments  1880, 
p.  98.    In  effect  April  16,  1880.] 

Insolvency:  Sec.  1822. 

§  1589.  When  there  is  a  deficiency  of  assets 
in  the  hands  of  an  executor  or  administrator, 
and  when  the  decedent,  in  his  lifetime,  has  con- 
veyed any  real  estate,  or  any  rights  or  interests 
therein,  with  intent  to  defraud  his  creditors,  or  to 
avoid  any  right,  debt,  or  duty  of  any  person,  or 
has  so  conveyed  such  estate  that  by  law  the  deeds 
or  conveyances  are  void  as  against  creditors,  the 
executor  or  administrator  must  commence  and 
prosecute  to  final  judgment  any  proper  action  for 
the  recovery  of  the  same;  and  may  recover  for 
the  benefit  of  the  creditor  all  such  real  estate  so 
fraudulently  conveyed,  and  may  also,  for  the  ben- 
efit of  the  creditors,  sue  and  recover  all  goods, 
chattels,  rights,  or  credits  which  have  been  so 
conveyed  by  the  decedent  in  his  lifetime,  what- 


§S  1590,  1591  POWERS   AND   DUTIES.      '  622 

ever  may  have  been  the  manner  of  sncli  fraud- 
ulent conveyance. 

Executor  or  administrator  may  sue  witliout 
joining  beneficiaries:  Sec.  369. 

Power  to  bring  action:  Sees.  1452,  1581-1583. 

Fraudulent  conveyances:  See  sees.  1590,   1591. 

§  1590.  No  executor  or  administrator  is  bound 
to  sue  for  sucli  estate,  as  mentioned  in  the  pre- 
ceding section,  for  the  benefit  of  the  creditors, 
unless  on  application  of  creditors,  who  must  pay 
such  part  of  the  costs  and  expenses  of  the  suit,, 
or  give  such  security  to  the  executor  or  adminis- 
trator thereof,  as  the  court,  or  a  judge  thereof, 
shall  direct.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  98.    In  effect  April  16,  1880.] 

§  1591.  All  real  estate  so  recovered  must  be 
sold  for  the  payment  of  debts,  in  the  same  man- 
ner as  if  tlie  decedent  had  died  seized  thereof, 
upon  obtaining  an  order  therefor  from  the  court; 
and  the  proceeds  of  all  goods,  chattels,  rights,  and 
credits  so  recovered  must  be  appropriated  in  pay- 
ment of  the  debts  of  the  decedent  in  the  same 
manner  as  other  property  in  the  hands  of  the  ex- 
ecutor or  administrator.  [Amendment  approved 
April  16,  1880:  Amendments  1880.  p.  98.  In  effect 
April  16,  1880.] 


623  CONVEYANCE.  §§  1597,  159S 


CHAPTER  IX. 

OP  THE  CONVEYANCE   OF  REAL  ESTATE  BY  EXECU- 
TORS AND  ADMINISTRATORS  IN  CERTAIN 
CASES. 

§  1597.  Executor  to  complete  contracts  for  sale  of  real  es- 
tate. 

§  1598.  Petition  for  executor  to  make  conveyance,  and 
notice  of  hearing. 

§  1599.    Interested  parties  may  contest. 

§  1600.    Conveyances  when  ordered  to  be  made. 

§  1601.  Execution  of  conveyance  and  record  thereof,  how 
enforced. 

§  1602.     Rights  of  petitioner  to  enforce  contract. 

§  1603.    Effect  of  conveyance. 

§  1604.    Effect  of  recording  a  copy  of  the  decree. 

§  1605.  Recording  decree  does  not  supersede  power  of  court 
to  enforce  it. 

§  1606.  Where  party  to  whom  conveyance  to  be  made  is 
dead. 

§  1607.    Decree  may  direct  possession  to  be  surrendered. 

§  1597.  When  a  person  who  is  bound  by  con- 
tract in  writing  to  convey  any  real  estate  dies  be- 
fore making  the  conveyance,  and  in  all  cases 
Avhen  such  decedent,  if  living,  might  be  compell- 
ed to  make  such  conveyance,  the  court  may  make 
a  decree  authorizing  and  directing  his  executor  or 
administrator  to  convey  such  real  estate  to  the 
l>orson  entiiled  thereto.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  p.  99.  In  effect 
April  16,  1880.] 

§  1598.  On  the  presentation  of  a  verified  peti- 
tion by  any  person  claiming  to  be  entitled  to  such 
conveyance  from  an  executor  or  administrator, 
setting  forth  the  facts  upon  which  the  claim  is 
predicated,  the  court,  or  a  .inflge  thereof,  must  ap- 
point a  time  and  place  for  hearing  the  petition, 
and  must  order  notice  thereof  to  be  published  at 
Ipast  four  successive  weeks  before  such  hearing, 
in  such  newspaper  in  this  State  as  he  may  desig- 


?§  1599-1602  CONVEYANCE.  624 

iiate.     [Ameiidmeiit     approved     April     16,     1880; 
Amendments  1880,  p.  99.    In  effect  April  IG,  1880.] 

Yerilication  of  pleadings:  See.  446. 

Publication  of  notice:  Sec.  1705. 

Petition:  Sec.  1518. 

§  1599.  At  the  time  and  place  appointed  for 
the  hearing,  or  at  such  other  time  to  which  the 
same  may  be  postponed,  upon  satisfactory  proof 
by  affidavit  or  otherwise  of  the  due  publication 
of  the  notice,  the  court  must  proceed  to  a  hearing, 
and  all  persons  interested  in  the  estate  may  ap- 
pear and  contest  such  petition,  by  filing  their  ob- 
jections in  writing,  and  the  court  may  examine, 
on  oath,  the  petitioner  and  all  who  may  be  pro- 
duced before  him  for  that  purpose. 

§  1600.  If,  after  a  full  hearing  upon  the  peti- 
tion and  objections,  and  examination  of  the  facts 
and  circumstances  of  the  claim,  the  court  is  sat- 
isfied that  the  petitioner  is  entitled  to  a  convey- 
ance of  the  real  estate  described  in  the  petition, 
a  decree  authorizing  and  directing  the  executor 
or  administrator  to  execute  a  conveyance  thereof 
to  the  petitioner  must  be  made,  entered  on  the 
minutes  of  the  court  and  recorded. 

§  1601.  The  executor  or  administrator  must 
execute  the  conveyance  according  to  the  direc- 
tions of  the  decree,  a  certified  copy  of  which  must 
be  recorded  with  the  deed  in  the  office  of  the  re- 
corder of  the  county  where  the  lands  lie,  and  is 
prima  facie  evidence  of  the  correctness  of  the  pro- 
ceedings, and  of  the  authority  of  the  executor  or 
administrator  to  make  the  conveyance.  [Amend- 
ment approved  March  24.  1874:  Amendments 
1873-4,  p.  371.    In  effect  July  1,  1874.] 

§  1602.  If,  upon  hearing,  as  hereinbefore  pro- 
vided, the  right  of  the  petitioner  to  have  a  specific 


625  CONVEYANCE.  §§  1603-1306 

performance  of  the  conti-act  is  found  to  be  doubt- 
ful, the  court  must  dismiss  tlie  petition  without 
prejudice  to  the  right  of  the  petitioner,  who  may, 
at  any  time  within  six  mouths  thereafter,  pro- 
ceed by  action  to  enforce  a  specific  performance 
thereof.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  99.    In  effect  April  16,  1880.] 

§  1603.  Every  conveyance  made  in  pursuance 
of  a  decree  as  provided  in  this  chapter,  shall  pass 
the  title  to  the  estate  contracted  for,  as  fully  as 
if  the  contracting  party  himself  was  still  living, 
and  executed  the  conveyance.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  p.  99. 
In  effect  April  16,  1880.] 

Conveyances  by  executor,  etc.:  Sec.  1555. 

§  1604.  A  copy  of  the  decree  for  a  conveyance, 
as  provided  in  this  chapter,  duly  certified  and  re- 
corded in  the  office  of  the  recorder  of  the  county 
where  the  lands  lie,  gives  the  person  entitled  to 
the  conveyance  a  right  to  the  possession  of  the 
lands  contracted  for,  and  to  hold  the  same  accord- 
ing to  the  terms  of  the  intended  conveyance,  in 
lilve  manner  as  if  they  had  been  conveyed  in  pur- 
suance of  the  decree.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  p.  99.  In  effect 
April  16,  1880.] 

§  1605.  The  recording  of  any  decree,  as  provid- 
ed in  the  preceding  section,  shall  not  prevent  the 
court  malving  the  decree  from  enforcing  the  same 
by  other  process. 

§  1606.  If  the  person  entitled  to  the  convey- 
ance dies  before  the  commencement  of  proceed- 
ings therefor  under  this  chapter,  or  before  the 
completion  of  the  conveyance,  any  person  entitled 
to  succeed  to  his  rights  in  the  contract,  or  the  ex- 
ecutor or  administrator  of  such  decedent,  may, 
Code  Civ.   Proc— .'iS. 


§§  1607,  1612  ACCOUNTS.  626 

for  the  benefit  of  the  person  so  entitled,  com- 
mence such  proceedings  or  prosecute  any  ah-eady 
commenced,  and  the  conveyance  must  be  so  made 
as  to  vest  the  estate  in  the  persons  entitled  to  it, 
or  in  the  executor  or  administrator,  for  their  ben- 
efit. 

V§  1607.    The  decree  provided  for  in  this  chapter 
may  direct  the  possession  of  the  property  therein 
\  V  described  to  be  surrendered  to  the  person  entitled 
'V    thereto,  upon  his  producing  the  deed  and  a  cer- 
tified copy  of  the  decree,  when,  by  the  terms  of 
the  contract,  possession  is  to  be  surrendered. 


CHAPTER  X. 

ACCOUNTS   AND   OF  PAYMENT   OF   DEBTS. 

ARTICLE  I. 

LIABILITIES   AND   COMPENSATION   OP   EXECUTORS. 

§  1612.  When  executor  or  administrator  personally  liable. 

§  1613.  Executor  to  be  charged  with  all  estate,  etc. 

§  1614.  Not  to  profit  or  lose  by  estate. 

§  1615.  Uncollected  debts  without  fault. 

§  1616.  Compensation  of  the  executor  and  administrator. 

§  1617.  Not  to  purchase  claims  against  the  estate. 

§  1618.  Executor's  and  administrator's  commissions. 

§  1612.    No      executor      or      administrator     is 
^  ^chargonble  upon  any   special  promise  to   answer 
,''""  damages  or  to  pay  the  debts  of  the  testator  or 
intestate  out  of  his  own  estate,  unless  the  agree- 
ment for  that  purpose,  or  some  memorandum  or 
note  thereof,  is  in  writing  and  signed  by  such  ex- 
ecutor or  administrator,  or  by  some  other  person 
by  him  thereunto  specially  authorized. 
Compare  sec.  1973,  subd.  2. 


627  ACCOUNTS.  §§  1613-1616 

§  1613.  Every  executor  and  administrator  is 
chargeable  in  his  account  with  the  whole  of  the 
estate  of  the  decedent  Avhich  may  come  into  his 
possession,  at  the  value  of  the  appraisement  con- 
tained in  the  inventory,  except  as  provided  in  the 
following  sections,  and  with  all  the  interest,  prof- 
it and  income  of  the  estate. 

§  1614.  He  shall  not  malce  profit  by  the  in- 
crease, nor  suffer  loss  by  the  decrease  or  destruc- 
tion, without  his  fault,  of  any  part  of  the  estate. 
He  must  account  for  the  excess  when  he  sells  any 
part  of  the  estate  for  more  than  the  appraisement, 
and  if  any  is  sold  for  less  than  the  appraisement, 
he  is  not  responsible  for  the  loss  if  the  sale  has 
been  justly  made. 

Becoming  purchaser:  Sec.  1576. 

§  1615.  No  executor  or  administrator  is  ac- 
countable for  any  debts  due  to  the  decedent,  if  it 
appears  that  they  remain  uncollected  without  his 
fault. 

/> 

§  1616.    He  shall  be  allowed  all  necessary  ex-  ' 

penses  in  the  care,  management,   and  settlement 
of  the  estate,   including  reasonable  fees  paid  to 
attorneys  for  conducting  the  necessary  proceed- 
ings or  suits  in  courts,  and  for  his  services  such  >^ 
fees  as  provided  in  this  chapter;  but  when  the  de-  ^  ^ 
cedent,   by  his  will,   makes  some  other  provision  '^  ^ 
for  the  compensation  of  his  executor,  that  shall  be 
a  full  compensation  for  his  services,  unless,  by  a 
written    instrument,   filed    in    the    court,   he    re- 
nounces all  claim  for  compensation  provided  by 
the  will.     [Amendment    approved    April  IG,  1880; 
Amendments  1880,  p.  99.    In  effect  April  16,  1880.] 

Compensation  for  services— commissions,  where 
no  provision  in  will,  etc.:  Sec.  1618. 

Costs:  Sec.  1509. 


V 


§§  1617,  1618  ACCOUNTS.  628 

§  1617.  No  administrator  or  executor  shall 
purchase  any  claim  against  the  estate  he  repre- 
sents; and  if  he  pays  any  claim  for  less  than  its 
nominal  value,  he  is  only  entitled  to  charge  in 
his  account  the  amount  he  actually  paid. 

Purchasing  property  of  estate:  Sec.  1576;  fraud- 
ulently selling  realty;  Sec.  1572. 

§  1618.  When  no  compensation  is  provided  by 
the  will,  or  the  executor  renounces  all  claim  there- 
;to,  he  must  be  allowed  commissions  upon  the 
amount  of  estate  accounted  for  by  him,  as  fol- 
lows: for  the  first  thousand  dollars,  at  the  rate 
of  seven  per  cent:  for  all  above  that  sum,  and 
not  exceeding  ten  thousand  dollars,  at  the  rate  of 
five  per  cent;  for  all  above  ten  thousand  dollars, 
and  not  exceeding  twenty  thousand  dollars,  at  the 
rate  of  four  per  cent:  for  all  above  twenty  thou- 
sand dollars,  and  not  exceeding  fifty  thousand 
dollars,  at  the  rate  of  three  per  cent:  for  all  above 
fifty  thousand  dollars,  and  not  exceeding  one 
hundred  thousand  dollars,  at  the  rate  of  two  per 
cent;  and  for  all  above  one  hundred  thousand  dol- 
lars, at  the  rate  of  one  per  cent.  The  same  com- 
missions shall  be  allowed  to  administrators.  In 
all  cases,  such  further  allowance  may  be  made  as 
the  court  may  deem  just  and  reasonable  for  any 
(extraordinary  service,  but  the  total  amount  of 
such  extra  allowance  must  not  exceed  one-half 
the  amount  of  commissions  alloAved  by  this  sec- 
tion. Where  tlie  property  of  the  estate  is  distrib- 
uted in  kind,  and  involves  no  labor  l>eyond  the 
custody  and  distribution  of  the  same,  "the  com- 
mission shall  be  computed  on  all  the  estate  above 
the  value  of  twenty  thousand  dollars,  at  one-half 
of  the  rates  fixed  in  this  section.  Public  adminis- 
tratoi-s  sliall  receive  the  same  compensation  and 
allowaiu-es  as  are  allowed  in  this  title  to  other 
administrators.    All  contracts  between  an  execu- 


^ 


629  ACCOUNTS.  §  1622 

tor  or  administrator  and  au  heir,  devisee,  or  lega- 
tee, for  a  liiglier  compeusatiou  than  that  allowed 
by  this  section,  shall  be  void;  provided,  this  act 
shall  not  apply  to  estates  now  in  course  of  ad- 
ministration, except  where,  and  to  the  extent  that, 
such  estates  consist  of  bonds  and  other  securities, 
to  be  distributed  without  extra  expense  in  admin- 
istration. [Amendment  approved  March  4,  1881; 
Amendments  1881,  p.  36.    In  effect  March  4,  1881.] 


ARTICLE  II. 

ACCOUNTING     AND     SETTLEMENTS     BY     EXECUTORS 
AND    ADMINISTRATORS. 

§  1622.  Exhibit  of  receipts  and  disbursements,  and  claims 
allowed. 

§  1623.     Citation   to   account   at   third   term. 

§  1624.  Petition  for  citation  to  render  final  or  other  ac- 
count. 

§  1625.     Citation  to  account  on  application. 

§  1626.     Objections  to  account,   who   may  file. 

$  1627.     Attachment  for  not  obeying  citation. 

§  1328.     To  render  accounts  at  expiration  of  term. 

§  1629.     Executor  to   account  after  his  authority  revoked. 

§  1630.     Revoking  authority  of   executor,    when. 

§  1631.  To  produce  and  file  vouchers,  which  remain  in 
court. 

§  1632.  Vouchers  for  items  less  than  twenty  dollars,  when 
accepted. 

§  1633.  Day  of  settlement  to  be  appointed,  and  notice 
thereof. 

§  1634.  Final  settlement,  partition  and  distribution  made 
at  same  time. 

§  1635.    Interested   party  may   file   exceptions   to   account. 

§  1636.  All  matters  may  be  contested  by  the  heirs.  Hear- 
ing. 

§  1637.  Settlement  of  accounts  to  be  conclusive,  when  and 
when  not. 

§  1638.    Proof  of  notice  of  settlement  of  accounts. 

§  1639.     Sale  of  personal   property. 

§  1640.     Moneys  invested  by  order  of  court. 

§  1622.    Six  months  after  his  appointment,  and 
at  any  time  when  required   by  the  court,   either 


§§  1623-1G25  ACCOUNTS.  630 

upon  his  own  motion  or  upon  the  application  of 
any  person  interested  in  the  estate,  the  executor 
or  administrator  must  render,  for  the  information 
of  the  court,  an  exhibit  under  oath,  showing  the 
amount  of  money  received  and  expended  by  him, 
the  amount  of  all  claims  presented  against  the 
estate,  and  the  names  of  the  claimants,  and  all 
other  matters  necessary  to  show  the  condition  of 
its  affairs.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  100.  In  effect  April  16, 
1880.] 

§  1623.  If  the  executor  or  administrator  fails 
to  render  an  exhibit  for  six  months  after  his  ap- 
pointment, the  court,  or  a  judge  thereof,  must 
cause  a  citation  to  be  issued  requiring  him  to  ap- 
pear and  render  it.  [Amendment  approved  April 
16,  1880;  Amendments  1880,  p.  100.  In  effect  April 
16,  1880.] 

Citation:  Sees.  1707,  1711. 

§  1624.  Any  person  interested  in  the  estate 
may,  at  any  time  before  the  final  settlement  of 
accounts,  present  his  petition  to  the  court,  or  a 
judge  thereof,  praying  that  the  executor  or  ad- 
ministrator be  required  to  appear  and  render  such 
exhibit,  setting  forth  the  facts  showing  that  it  is 
necessary  and  proper  that  such  an  exhibit  should 
be  made.  [Amendment,  approved  April  16,  1880; 
Amendments  1880,  100.    In  effect  April  16,  1880.] 

§  1625.  If  the  court,  or  a  judge  thereof,  is  sat- 
isfied, either  from  the  oath  of  the  applicant  or 
from  any  other  testimony  offered,  that  the  facts 
alleged  are  true,  and  considers  the  showing  of  the 
applicant  sufficient,  he  must  direct  a  citation  to 
be  issued  to  the  executor  or  administrator,  requir- 
ing him  to  appear,  at  some  day  to  be  named  in  the 
citation,  and  render  an  exhibit  as  prayed  for. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 1880,  100.    In  effect  April  16th,  1880.] 


631  ACCOUNTS.  §§  1626-1628 

§  1626.  When  an  exhibit  is  rendered  by  an  exec- 
utor or  administrator,  any  person  interested  may 
appear,  and  by  objections  in  writing,  contest  any 
account  or  statement  therein  contained.  The  court 
may  examine  the  executor  or  administrator,  and 
if  he  has  been  guilty  of  neglect,  or  has  wasted, 
embezzled,  or  mismanaged  the  estate,  his  letters 
must  be  revolved. 

Any  person  interested.    See  sec.  1635. 

Revocation  for  misconduct.    Sec.  143G  et  seq. 

§  1627.  If  any  executor  or  administrator  neg- 
lects or  refuses  to  appear  and  render  an  exhibit, 
after  having  been  duly  cited,  an  attachment  may 
be  issued  against  him,  and  such  exhibit  enforced, 
or  his  letters  may  be  revoked,  in  the  discretion  of 
the  court. 

Contempt:    Sees.  1209,  1219. 

§  1628.  Within  thirty  days  after  the  expiration 
of  the  time  mentioned  in  the  notice  to  creditors 
within  which  claims  must  be  exhibited,  every 
executor  or  administrator  must  render  a  full  ac- 
count and  report  of  his  administration.  If  he  fails 
to  present  his  account,  the  court  or  judge  must 
compel  the  rendering  of  the  account  by  attach- 
ments, and  any  person  interested  In  the  estate 
may  apply  for  and  obtain  an  attachment;  but  no 
attachment  must  issue  unless  a  citation  has  been 
first  issued,  served,  and  returned,  requiring  the 
executor  or  administrator  to  appear  and  show 
cause  why  an  attachment  should  not  issue.  Ev- 
ery account  must  exhibit  all  debts  which  have 
been  presented  and  allowed  during  the  period  em- 
braced in  the  account.  [Amendment  approved 
March  11,  1876  Amendments  1875-6,  104.  In  effect 
90  days  after  passage.] 

Account  of  administration— finals  sees.  1647, 
1052. 

Judge  may  receive  at  chambers:  Sec.  166. 


§§  1629-J632  ACCOUNTS.  632 

§  1629.  When  the  authority  of  an  executor  or 
administrator  ceases,  or  is  revoked  for  any  reason, 
he  may  be  cited  to  account  before  the  court,  at 
the  instance  of  the  person  succeeding  to  the  ad- 
ministration of  the  same  estate,  in  lil^e  manner  as 
he  might  have  been  cited  by  any  person  interested 
in  the  estate  during  the  time  he  was  executor  or 
administrator.  [Amendment  approved  April  10, 
1880;  Amendments  1880,  101.  In  effect  April  16, 
1880.] 

§  1630.  If  the  executor  or  administrator  re- 
sides out  of  the  county,  or  absconds  or  conceals 
himself  so  that  the  citation  cannot  be  personally 
served,  and  neglects  to  render  an  account  within 
thirty  days  after  the  time  prescribed  in  this  arti- 
cle, or  if  he  neglects  to  render  an  account  within 
thirty  days  after  being  committed  where  the  at- 
tachment has  been  executed,  his  letters  must  be 
revoked. 

§  1631.  In  rendering  his  account,  the  executor 
or  administrator  must  produce  and  file  vouchers 
for  all  charges,  debts,  claims,  and  expenses  which 
he  has  paid,  which  must  remain  in  the  court;  and 
he  may  be  examined  on  oath  touching  such  pay- 
ments, and  also  touching  any  property  and  effects 
of  the  decedent,  and  the  disposition  thereof. 
When  any  voucher  is  required  for  other  purposes, 
it  may  be  withdrawn  on  leaving  a  certified  copy 
on  file:  if  a  voucher  is  lost,  or  for  other  good  rea- 
son cannot  be  produced  on  the  settlement,  the 
payment  may  be  proved  by  the  oath  of  any  com- 
petent witness. 

Vouchers— required  of  claimant,  sec.  1494;  Lack- 
ing, see  sec.  1632. 

§  1632.  On  the  settlement  of  his  account  he 
may  be  allowed  any  item  of  expenditure  not  ex- 
ceeding twenty  dollars,  for  which  no  voucher  is 


633  ACCOUxNTS.  §§  1633,  1634 

produced,  if  such  item  be  supported  by  his  own 
uncontradicted  oath  positive  to  the  fact  of  pay- 
ment, specifying  wlien.  where,  and  to  whom  it  was 
made;  but  such  allowances  in  the  whole  must  not 
exceed  five  hundred  dollars  against  any  one  estate, 
and  if,  upon  such  settlement  of  accounts,  it  ap- 
pear that  debts  against  the  deceased  have  been 
paid  without  the  affidavit  and  allowance  prescrib- 
ed by  statute  or  sections  one  thousand  four  hun- 
dred and  ninety-four,  one  thousand  four  hundred 
and  ninety-flve,  and  one  thousand  four  hundred 
and  ninety-six  of  this  Code,  and  it  shall  be  proven 
by  competent  evidence  to  the  satisfaction  of  the 
court  that  such  debts  were  justly  due,  were  paid 
in  good  faith,  that  the  amount  paid  was  the  true 
amount  of  such  indebtedness  over  and  above  all 
payments  or  set-off,  and  that  the  estate  is  solvent, 
it  shall  be  the  duty  of  the  said  court  to  allow  the 
said  sums  so  paid  in  the  settlement  of  said  ac- 
counts. [Amendment  approved  April  16,  1880; 
Amendments  1880,  101.    In  effect  April  16,  1880.] 

§  1633.  When  any  account  is  rendered  for  set- 
tlement, the  clerk  of  the  court  must  appoint  a  day 
for  the  settlement  thereof,  and  thereupon  give  no- 
tice thereof  by  causing  notices  to  be  posted  in  at 
least  three  public  places  in  the  county,  setting 
forth  the  name  of  the  estate,  the  executor  or  ad- 
ministrator, and  the  day  appointed  for  the  settle- 
ment of  the  account.  If,  upon  the  final  hearing 
at  the  time  of  settlement,  the  court,  or  a  judge 
thereof,  should  deem  the  notice  insufficient  from 
any  cause,  he  may  order  such  further  notice  to  be 
given  as  may  seem  to  him  proper.  [Amendment 
approved  March  31,  1891;  Stats.  1891,  428.] 

§  1634.  If  the  account  mentioned  in  the  preced- 
ing section  be  for  a  final  settlement,  and  a  petition 
for  the  final  distribution  of  the  estate  be  filed  with 
said  account,  the  notice  of  settlement  must  state 


§§  1635-1637  ACCOUNTS.  634 

those  facts,  which  notice  must  be  given  by  post- 
ing or  publication  for  at  least  ten  days  prior  to  the 
clay  of  settlement.  On  the  settlement  of  said  ac- 
count, distribution  and  partition  of  the  estate  to 
all  entitled  thereto  may  be  immediately  had  with- 
out further  notice  or  proceedings.  [Amendment 
approved  March  31,  1891;  Stats.  1891,  428.] 

§  1635.  On  the  day  appointed,  or  any  subse- 
quent day  to  which  the  hearing  may  be  postponed 
by  the  court,  any  person  interested  in  the  estate 
may  appear  and  file  his  exceptions  in  writing  to 
the  account,  and  contest  the  same. 

§  1636.  All  matters,  including  allowed  claims 
not  passed  upon  on  the  settlement  of  any  former 
account,  or  on  rendering  an  exhibit,  or  on  mailing 
a  decree  of  sale,  may  be  contested  by  the  heirs, 
for  cause  shown.  The  hearing  and  allegations  of 
the  respective  parties  may  be  postponed  from  time 
to  time,  when  necessary,  and  the  court  may  ap- 
point one  or  more  referees  to  examine  the  ac- 
counts, and  make  report  thereon,  subject  to  con- 
firmation; and  may  allow  a  reasonable  compensa- 
tion to  the  referees,  to  be  paid  out  of  the  estate  of 
the  decedent. 

Referees:   Sees.  638-64.5. 

§  1637.  The  settlement  of  the  account  and  the 
allowance  thereof  bj'  the  court,  or  upon  appeal,  is 
conclusive  against  all  persons  in  any  way  inter- 
ested in  the  estate,  saving,  however,  to  all  persons 
laboring  under  any  legal  disability,  their  right  to 
move  for  cause  to  reopen  and  examine  the  ac- 
count, or  to  proceed  by  action  against  the  execu- 
tor or  administrator,  either  individually  or  upon 
his  bond,  at  any  lime  before  final  distribution;  and 
in  any  action  brought  by  any  such  person,  the  al- 
lowance and  settlement  of  the  account  is  prima 
facie  evidence  of  its  correctness.    [Amendment  ap- 


635  ACCOUNTS.  §§  1638-1640 

proved  March  24,  1874;  Amendments  1873-4,  372. 
In  effect  July  1st,  1874.] 

Conclusiveness  of  settlement:  See  sec.  1390, 
ante;   see  sec.  1638. 

§  1638.  The  account  must  not  be  allowed  by 
the  court  until  it  is  first  proved  that  notice  has 
been  given  as  required  by  this  chapter,  and  the 
decree  must  show  that  such  proof  Avas  made  to 
the  satisfaction  of  the  court,  and  is  conclusive  evi- 
dence of  the  fact. 

§  1639.  Whenever  it  appears  to  the  court  on 
any  hearing  of  an  application  for  the  sale  of  real 
property,  that  it  would  be  for  the  interest  of  the 
estate  that  personal  property  of  the  estate,  or 
some  part  of  such  property,  should  be  first  sold, 
the  court  may  decree  the  sale  of  such  personal 
property,  or  any  part  of  it,  and  the  sale  thereof 
shall  be  conducted  in  the  same  manner  as  if  the 
application  had  been  made  for  the  sale  of  such  per- 
sonal property  in  the  first  instance.  [New  section 
approved  March  24,  1874;  Amendments  1873-4,  372. 
In  effect  July  1,  1874.] 

§  1640.  Pending  the  settlement  of  any  estate, 
on  the  petition  of  any  party  interested  -therein, 
and  upon  good  cause  shown  therefor,  the  court 
may  order  any  moneys  in  the  hands  of  the  execu- 
tors or  administrators  to  be  invested  for  the  ben- 
efit of  the  estate  in  securities  of  the  United  States 
or  of  this  State.  Such  order  can  only  be  made 
after  publication  of  notice  of  the  petition  in  some 
newspaper,  to  be  designated  by  the  court  or  a 
judge  thereof.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  101.  In  effect  April  16, 
ISSO.] 


§§  1J13,  1644  ACCOUNTS.  636 

ARTICLE  III. 

THE  PAYMENT  OF  DEBTS  OF  THE  ESTATE. 

§  1643.     Order  in  which  debts  to  be  paid. 

§  1644.     Where   property    insufficient   to    pay    mortgage. 

§  1645.     Estate  insufficient,   a   dividend  to  be   paid. 

§  1646.     Funeral   expenses  and  expenses   of   last  sickness. 

§  1647.  Order  for  payment  of  debts  and  discharge  of  the 
executor   and   administrator. 

§  1648.    Provision  for  disputed  and  contingent  claims. 

§  IJ-iy.  After  decree  for  payment  of  debts,  executor  per- 
sonally  liable  to   creditors. 

§  1650.  Claims  not  included  in  order  for  payment  of  debts, 
how  disposed  of. 

§  1651.  Order  for  payment  of  legacies  and  extension  of 
time. 

§  1652.     Final  account,   when  to  be  made. 

§  1653.     Neglect  to  render  final  account,  how  treated. 

§  1643.  The  debts  of  the  estate,  subject  to  the 
provisions  of  section  twelve  hundred  and  five, 
must  be  paid  in  the  following  order: 

1.  Funeral  expenses; 

2.  The  expenses  of  the  last  sickness; 

3.  Debts  having  preference  by  the  laws  of  the 
United  States; 

4.  Judgments  rendered  against  the  decedent  m 
his  lifetime,  and  mortgages  in  the  order  of  their 
date. 

5.  All  other  demands  against  the  estate. 
Preferred  claims  for  wages:   Sec.  1205. 
Family  allowance:    Sees.  1467,  1646. 
Mortgaged  real  estate:  Sec.  1569. 

§  1644.  Tlie  preference  given  in  the  preceding- 
section  to  a  mortgage  only  extends  to  the  proceeds 
of  the  property  mortgaged.  If  the  proceeds  of  such 
property  is  insutficient  to  pay  the  mortgage,  the 
l)art  remaining  unsatisfied  must  be  classed  with 
(»tlier  demands  n gainst  the  estate. 

Proceeds  of  property  mortgaged:  Sec.  1569. 


637  ACCOUNTS.  §§  1645-1648 

§  1645.  If  the  estate  is  insufficient  to  pay  all 
the  debts  of  any  one  class,  each  creditor  must  be 
paid  a  dividend  in  proportion  to  his  claim;  and 
no  creditor  of  any  one  class  shall  receive  any  pay- 
ment until  all  those  of  the  preceding  class  are 
fully  paid. 

§  1646.    The  executor  or  administrator,  as  soon 
as  he  has  suflScient  funds  in  his  hands,  must  pay 
the   funeral   expenses,    and   expenses   of  the   last  '^'^ 
sickness,  and  the  allowance  made  to  the  family  ^  ^^ 
of  the  decedent.    He  may  retain  in  his  hands  the'     } 
necessary  expenses  of  administration,   but   he   is 
not  obliged  to  pay  any  other  debt  or  any  legacy  ^/ 
until,  as  prescribed  in  this  article,  the  payment  has 
been  ordered  by  the  court. 

§  1647.  Upon  the  settlement  of  the  accounts  of 
the  executor  or  administrator,  as  required  in  this 
chapter,  the  court  must  make  an  order  for  the 
payment  of  the  debts,  as  circumstances  of  the  es- 
tate require.  If  there  is  not  sufficient  funds  in  the 
hands  of  the  executor  or  administrator,  the  court 
must  specify  in  the  decree  the  sum  to  be  paid  to 
each  creditor.  If  the  whole  property  of  the  estate 
be  exhausted  by  such  payment  or  distribution, 
such  account  must  be  considered  as  a  final  ac- 
count, and  the  executor  or  administrator  is  en- 
titled to  his  discharge  on  producing  and  filing  the 
necessary  vouchers  and  proofs  showing  that  such 
payments  have  been  made,  and  that  he  has  fully 
coraplie<l  witli  the  decree  of  the  court.  [Amend- 
ment approved  March  11,  1876:  Amendments  1875- 
6,  104,    In  effect  in  ninety  days.] 

Settlement  of  accounts:    Sec,  1628. 

§  1648.    If  there  is  any  claim  not  due.  or  any 

contingent  or  disputed   claim   against  the  estate. 

the  amount  thereof,  or  such  part  of  the  same  as  the 

holder  would  be  entitled  to  if  tlie  claim  were  duo. 

Code  Civ.  Proc— 54. 


§§  1649,  1650  ACCOUNTS.  638 

establislied,  or  absolute,  must  be  paid  into  the 
court,  and  there  remain,  to  be  paid  over  to  the 
party  when  he  becomes  entitled  thereto;  or,  if  he 
fails  to  establish  his  claim,  to  be  paid  over  or  dis- 
tributed as  the  circumstances  of  the  estate  re- 
quire. If  any  creditor  whose  claim  has  been  al- 
lowed, but  is  not  yet  due  appears  and  assents  to 
a  deduction  therefrom  of  the  legal  interest  for  the 
time  the  claim  has  yet  to  run,  he  is  entitled  to  be 
paid  accordingly.  The  payments  provided  for  in 
this  section  are  not  to  be  made  when  the  estate 
is  insolvent,  unless  a  pro  rata  distribution  is  or- 
dered. 

§  1649.  When  a  decree  is  made  by  the  court 
for  the  payment  of  creditors,  the  executor  or  ad- 
ministrator is  personally  liable  to  each  creditor 
for  his  allowed  claim,  or  the  dividend  thereon,  and 
execution  may  be  issued  on  such  decree,  as  upon 
a  judgment  in  the  court,  in  favor  of  each  creditor, 
and  the  same  proceedings  may  be  had  under  such 
execution  as  under  execution  in  other  cases.  The 
executor  or  administrator  is  liable  therefor  on 
his  bond  to  each  creditor.  [Amendment  approved 
April  16,  1880;  Amendments  1880,  101.  In  effect 
April   16th,    1880.] 

§  1650,  When  the  accounts  of  the  administrator 
or  executor  have  been  settled,  and  an  order  made 
for  the  payment  of  debts  and  distribution  of  the 
estate,  no  creditor,  whose  claim  was  not  included 
in  the  order  for  payment,  has  any  right  to  call 
upon  the  creditors  who  have  been  paid,  or  upon 
tlie  heirs,  devisees,  or  legatees,  to  contribute  to  the 
payment  of  his  claim;  but  if  the  executor  or  ad- 
ministrator has  failed  to  give  the  notice  to  the 
creditors,  as  prescribed  in  section  fourteen  hun- 
dred and  ninety-one,  such  creditor  may  recover 
on  the  bond  of  the  executor  or  administrator  the 
amount  of  his  claim,  or  such  part  thereof  as  he 


639  ACCOUNTS.  §§  1651-165? 

would  have  been  entitled  to,  had  it  been  allowed. 
This  section  shall  not  apply  to  any  creditor  whose 
claim  was  not  due  ten  months  before  the  day  of 
settlement,  or  whose  claim  was  contiu.uent,  and 
did  not  become  absolute  ten  months  before  such 
day. 

§  1651.  If  the  whole  of  the  debts  have  been 
paid  by  the  first  distribution,  the  court  must  direct 
the  payment  of  leg:acies  and  the  distribution  of  the 
estate  among  the  heirs,  legatees,  or  other  persons 
entitled,  as  provided  in  the  next  chapter;  but  if 
there  bedebts  remaining  unpaid, or  if, for  other  rea- 
sons, the  estate  be  not  in  a  proper  condition  to  be 
closed,  the  court  must  give  such  extension  of  time 
as  may  be  reasonable,  for  a  final  settlement  of  the 
estate. 

§  1652.  At  the  time  designated  in  the  last  sec- 
tion, or  sooner,  if  within  that  time  all  the  property 
of  the  estate  has  been  sold,  or  there  are  sufficient 
funds  in  his  hands  for  the  payment  of  all  the  debts 
due  by  the  estate,  and  the  estate  be  in  a  proper 
condition  to  be  closed,  the  executor  or  administra- 
tor must  render  a  final  account,  and  pray  a  set- 
tlement of  his  administration. 

Settlement  of  accounts:    Sec.  1628. 

§  1653.  If  he  neglects  to  render  his  account, 
the  same  proceedings  may  be  had  as  prescribed 
in  this  chapter  in  regard  to  the  first  account  to  be 
rendered  by  him,  and  all  the  provisions  of  this 
chapter  relative  to  the  last-mentioned  account,  and 
the  notice  and  settlement  thereof,  apply  to  his  ac- 
count presented  for  final  settlement. 

Proceedings  to  enforce  account:    Sees.  lG28-in30. 


§  1658  PARTITION    AND    SETTLEMENT.  640 


CHAPTER  XI. 

OF  THE  PARTITION,  DISTRIBUTION.  AND  FINAL  SET- 
TLEMENT   OF    ESTATES. 

Article  I,    Partial  Distribution  Prior  to  Final  Settlement. 
II.     Distribution   on    Final    Settlement. 

III.  Distribution  and  Partition. 

IV.  Agents  for  Absent  Interested  Parties.     Discharge 

of  Executor  or  Admiinstrator. 


ARTICLE  I. 

PARTIAL    DISTRIBUTION    PRIOR    TO    FINAL    SETTLE- 
MENT. 

§  1658.     Payment  of  legacies  upon  giving  bonds. 

§  1659.     Notice  of  application  for  legacies. 

§  1660.     Executor  or  other  person  may  resist  application. 

§  1661.     Decree  prayed  for  to  require  bond,   which  must  be 

given.     May   order   whole   or  part   of   share   to  be 

delivered.    Where  partition  necessary,   how   made. 

Costs. 
f  1662.     Order  for  payment  of  bond,  and  suit  thereon. 
$  1*^.63.    Any  heir,  devisee  or  legatee  may  petition  the  court 

for  distribution  of  net  proceeds.     Order  of  court. 

§  1658.  At  any  time  after  the  lapse  of  four 
mouths  from  the  issuing  of  letters  testamentary 
or  of  administration,  any  heir,  devisee,  or  legatee, 
may  present  his  petition  to  the  court  for  the  leg- 
acy or  share  of  the  estate  to  which  he  is  entitled, 
to  be  given  to  him  upon  his  giving  bonds,  with 
security,  for  the  payment  of  his  proportion  of 
the  debts  of  the  estate. 

Payment  of  legacies— order  of  appropriation  for: 
Civil  Code,  sec.  13G0. 

Proportion  of  tlie  debts— for  which  legatee,  etc., 
liable:  Civil  Code,  sec.  1377;  see  Code  Civil  Proc, 
aae.  1G50. 


641  PARTITION    AND    SETTLEMENT.    §§  1659-1661 

Jurisdiction  to  order  distribution:  Sec.  97,  subd. 
7. 

§  1659.  Notice  of  the  application  must  be  given 
to  the  executor  or  administrator,  personallj^  and 
to  all  persons  interested  in  the  estate,  in  the  same 
manner  that  notice  is  required  to  be  given  of  the 
settlement  of  the  account  of  an  executor  or  ad- 
ministrator. 

Notice  of  settlement  of  account:    Sec.  1633. 

§  1660.  The  executor  or  administrator,  or  any 
person  interested  in  the  estate,  may  appear  at  the 
time  named  and  resist  the  application,  or  any 
other  heir,  devisee,  or  legatee  may  make  a  similar 
application  for  himself. 

Any  person  interested:    Sec.  1635. 

§  1661.  If,  at  the  hearing,  it  appear  that  the 
estate  is  but  little  indebted,  and  that  the  share  of 
the  party  applying  may  be  allowed  to  him  v^ath- 
out  loss  to  the  creditors  of  the  estate,  the  court 
must  make  an  order  in  conformity  with  the  prayer 
of  the  applicant,  requiring: 

1.  Each  heir,  legatee,  or  devisee,  obtaining  such 
order,  before  receiving  his  share,  or  any  portion 
thereof,  to  execute  and  deliver  to  the  executor 
or  administrator  a  bond,  in  such  sum  as  shall  be 
designated  by  the  court,  or  a  judge  thereof,  with 
sureties  to  be  approved  by  the  judge,  payable  to 
the  executor  or  administrator,  and  conditioned 
for  the  payment,  whenever  required,  of  his  pro- 
portion of  the  debts  due  from  the  estate,  not  ex« 
ceeding  the  value  or  amount  of  the  legacy  or  por- 
tion of  the  estate  to  which  he  is  entitled. 

2.  The  executor  or  administrator  to  deliver  to 
the  heir,  legatee,  or  devisee,  the  whole  portion  of 
the  estate  to  which  he  may  be  entitled,  or  only 
a  part  thereof,  designating  it.  If,  in  the  execu- 
tion of  the  order,  a  partition  is  necessary  between 
two  or  more  of  the  parties  Interested,  it  must  be 


§§  1662,  1633  PARTITION  AND  SETTLEMENT.  642 

made  in  the  manner  hereinafter  prescribed.  The 
costs  of  these  proceedings  shall  be  paid  by  the  ap- 
plicant, or  if  there  be  more  than  one,  shall  be  ap- 
portioned equally  amongst  them.  [Amendment 
approved  April  16,  1880;  Amendments  1880,  102. 
In  effect  April  16th,  1880.] 

Order— not  made  if  any  taxes  unpaid:  Sec.  1669; 
recording,  sec.  1719. 

Partition— manner  hereinafter  prescribed:  Sec. 
1675  et  seq. 

§  1662.  When  any  bond  has  been  executed  and 
delivered  under  the  provisions  of  the  preceding 
section,  and  it  is  necessary  for  the  settlement  of 
the  estate  to  require  the  payment  of  any  part  of 
the  money  thereby  secured,  the  executor  or  admin- 
istrator must  petition  the  court  for  an  order  re- 
quiring the  payment,  and  have  a  citation  issued 
and  served  on  the  party  bound,  requiring  him  to 
appear  and  show  cause  why  the  order  should  not 
be  made.  At  the  hearing,  the  court,  if  satisfied 
of  the  necessity  of  such  payment,  must  make  an 
order  accordingly,  designating  the  amount  and  giv- 
ing a  time  within  which  it  must  be  paid.  If  the 
money  is  not  paid  within  the  time  allowed,  an  ac- 
tion may  be  maintained  by  the  executor  or  ad- 
ministrator on  the  bond. 

§  1663.  At  any  time  after  the  lapse  of  one  year 
from  the  issuance  of  letters  testamentary,  or  of 
administration,  any  heir,  devisee,  or  legatee  may 
present  his  or  her  petition  to  the  court  for  the 
distribution  of  the  net  proceeds  of  the  share  of 
the  said  estate  to  which  he  or  she  will  be  entitled. 
Notice  of  the  application  must  be  given,  as  re- 
quired by  section  sixteen  hundred  and  fifty-nine. 
The  executor  or  administrator,  or  any  other  per- 
son interested  in  the  estate,  may  appear  at  the 
time  named  and  resist  the  application,  or  any 
other  heir,  devisee,  or  legatee  may  make  a 
similar  application   for  himself.    If   at   the   hear- 


643  PARTITION    AND    SETTLEMENT.  §  1663 

ing  it  appear  that  the  estate  is  but  little  indebted, 
and  that  the  share  of  the  party  applying  may  be 
allowed  to  him  without  loss  to  the  creditors  of  the 
estate,  the  court  must  mal^e  an  order  in  conform- 
ity with  the  prayer  of  the  applicant,  requiring: 

1.  Each  heir,  legatee,  or  devisee,  obtaining  such 
order,  before  receiving  his  share,  or  any  portion 
thereof,  to  execute  and  deliver  to  the  executor  or 
administrator  a  bond,  in  such  sum  as  shall  be 
designated  by  the  court,  or  a  judge  thereof,  with 
sureties  to  be  approved  by  the  judge,  payable  to 
the  executor  or  administrator,  and  conditioned  for 
the  payment,  whenever  required,  of  his  proportion 
of  the  debts  due  from  the  estate,  not  exceeding  the 
amount  or  portion  of  the  proceeds  of  the  estate 
which  he  has  received;  provided,  that  where  the 
time  for  filing  or  presenting  claims  has  expired, 
and  all  claims  that  have  been  allowed  have  been 
paid,  or  are  secured  by  mortgage  upon  real  estate 
sufficient  to  pay  them,  and  the  court  is  satisfied 
that  no  injury  can  result  to  the  estate,  the  court 
may  dispense  with  the  bond. 

2.  The  executor  or  administrator  to  deliver  to 
the  heir,  legatee,  or  devisee  the  proceeds  of  the 
estate  to  which  he  may  be  entitled,  or  only  a  part 
thereof,  designating  it.  If,  in  tlie  opinion  of  the 
court,  it  be  necessary,  in  order  to  ascertain  the 
proceeds  that  any  or  all  of  the  heirs,  legatees  or 
devisees  may  be  entitled,  that  the  interest  of  any 
heir,  legatee,  or  devisee  in  one  or  more  pieces  or 
parcels  of  property  of  the  estate  shall  be  deter- 
mined or  ascertained,  the  court  may  suspend  pro- 
ceedings and  direct  the  petitioner  or  petitioners  to 
take  proceedings  under  section  sixteen  hundred 
and  sixty-four  of  this  Code  to  ascertain  the  inter- 
est the  petitioner  or  petitioners  will  have  under  the 
will  in  any  piece  or  parcel  of  property.  The  order 
must  describe  the  property  in  relation  to  which 
proceedings  are  to  be  talven.  Whenever  any  bond 
has  been  executed  and  delivered,  proceedings  upon 


§  1664  PARTITION    AND    SETTLEMENT.  644 

any  such  bond  may  be  taken  under  section  six- 
teen liundred  and  sixty-two.  Tlie  cost  of  these 
proceedings  shall  be  paid  by  the  applicant,  or  if 
there  be  more  than  one,  shall  be  apportioned 
equally  between  them.  [New  section  approved 
March  8,  18S9;  Stats.  1889,  92.  In  effect  March  8. 
1889.] 

ARTICLE  II. 

DISTRIBUTION  ON  FINAL  SETTLEMENT. 

§  1634.  Proceedings  in  the  nature  of  an  action  to  deter- 
mine heirship. 

§  1665.    Distribution  of  estate,  how  made  and  to  whom. 

§  1666.     What  the  decree  must  contain,   and  is  final. 

§  1667.  Distribution  when  decedent  was  not  a  resident  of 
this  State. 

§  1668.     Decree  to  be  made  only  after  notice. 

§  1669.  No  distribution  till  taxes  on  personal  property  are 
paid. 

§  1670.    Continuation  of  administration. 

§  1664.  In  all  estates  now  being  administered, 
or  that  may  hereafter  be  administered,  any  person 
claiming  to  be  heir  to  the  deceased,  or  entitled  to 
distribution  in  whole  or  in  any  part  of  such  estate, 
may,  at  any  time  after  the  expiration  of  one  year 
from  the  issuing  of  letters  testamentary  or  of  ad- 
ministration upon  such  estate,  file  a  petition  in 
the  matter  of  such  estate,  praying  the  court  to  as- 
certain and  declare  the  rights  of  all  persons  to 
said  estate  and  all  interests  therein,  and  to  whom 
distribution  thereof  should  be  made.  Upon  the  fil- 
ing of  such  petition,  the  Court  shall  make  an  order 
directing  service  of  notice  to  all  persons  interested 
in  said  estate  to  appear  and  show  cause,  on  a  day 
to  be  therein  named,  not  less  than  sixty  days  nor 
over  four  months  from  the  date  of  the  making  of 
such  order,  in  which  notice  shall  be  set  forth  the 
name  of  the  deceased,  the  name  of  the  executor 
or  administrator  of  said  estate,  the  names  of  all 
persons  who  may  have  appeared  claiming  any  in- 
terest in  said  estate  in  the  course  of  the  admin- 


645  PARTITION   AND    SETTLEMENT.  §  1664 

istration  of  the  same,  np  to  the  time  of  the  making 
of  said  order,  and  snch  other  persons  as  the  Court 
may  direct,  and  also  a  description  of  the  real  estate 
whereof  said  deceased  died  seized  or  possessed,  so 
far  as  l^nown,  described  with  certainty. to  a  com- 
mon intent;  and  requiring  all  said  persons  and  all 
persons  named  or  not  named,  having  or  claiming 
any  interest  in  the  estate  of  said  deceased,  at  the 
time  and  place  in  said  order  specified,  to  appear 
and  exhibit,  as  hereinafter  provided,  their  respec- 
tive claims  of  heirship,  ownership,  or  interest  in 
said  estate,  to  said  Court,  which  notice  shall  be 
served  in  the  same  manner  as  a  summons  in  a 
civil  action;  upon  proof  of  which  service,  by  affi- 
davit or  otherwise,  to  the  satisfaction  of  the  Court, 
the  Court  shall  thereupon  acquire  .iui'isdiction  to 
ascertain  and  determine  the  heirsliip,  ownership, 
and  interest  of  all  parties  in  and  to  the  property 
of    said   deceased,    and    such   determination    shall 
be  final  and  conclusive  in  the  administration  of 
said  estate  and  the  title  and  ownership  of  said 
property.    The  Court  shall  enter  an  order  or  decree 
establishing  proof  of  the  service  of  such  notice. 
All  persons  appearing  within  the  time  limited,  as 
aforesaid,  shall  file  their  written  appearance  in  per- 
son or  through  theirauthorized  atto^ne5^suc•h  attor- 
ney filing  at  the  same  time  written  evidence  of  his 
authority  to  so  appear,  entry  of  which  appearance 
shall  be  made  in  the  minutes  of  the  Court  and  in 
the  register  of  proceedings   of   said   estate.    And 
the  Court  shall,  after  the  expiration  of  the  time 
limited  for  appearing  as  aforesaid,  enter  an  order 
adjudging  the  default  of  all  persons  for  not  ap- 
pearing as  aforesaid,  who  shall  not  have  appeared 
as   aforesaid.    At   any   time   within   twenty  -days 
after  the  date  of  the  order  or  decree  of  the  Court 
establishing  proof  of  the  service  of  such  notice, 
any   of   such   ])ersons   so   appearing   may   file   his 
complaint  in  the  matter  of  the  estate,  setting  forth 
the  facts  constituting  liis  claim  of  heirship,  owner- 


§  1664  PARTITION    AND    SETTLEMENT.  C46 

sliip,  or  interest  in  said  estate,  with  such  reason- 
able particularity  as  the  Court  may  require,  and 
serve  a  copy  of  the  same  upon  each  of  the  parties 
or  attorneys  who  shall  have  entered  their  written 
appearance  as  aforesaid,  if  such  parties  or  such 
attorneys  reside  within  the  county;  and  in  case 
any  of  them  do  not  reside  within  the  county,  then 
service  of  such  copy  of  said  complaint  shall  be 
made  upon  the  Clerli  of  said  Court  for  them,  and 
the  Clerli  shall  forthwith  mail  the  same  to  the  ad- 
dress of  such  party  or  attorney  as  may  have  left 
with  said  Clerk  his  Post  Office  address.  Such 
parties  are  allowed  twenty  days  after  the  service 
of  the  complaint,  as  aforesaid,  within  which  to 
plead  thereto,  and  thereafter  such  proceedings 
shall  be  had  upon  such  complaint  as  in  this  Code 
provided  in  case  of  an  ordinary  civil  action;  and 
the  issues  of  law  and  of  fact  arising  in  the  pro- 
ceeding shall  be  disposed  of  in  like  manner  as  is- 
sues of  law  and  fact  are  herein  provided  to  be  dis- 
posed of  in  civil  actions,  with  a  lil^e  right  to  a 
motion  for  a  new  trial  and  appeal  to  the  Supreme 
Court;  and  the  provisions  in  this  Code  contained 
regulating  the  mode  of  procedure  for  the  trial  of 
civil  actions,  the  motion  for  a  neAv  trial  of  civil 
actions,  statements  on  motion  for  a  new  trial,  bills 
of  exception,  and  statements  on  appeal,  as  also  in 
regard  to  undertakings  on  appeal,  and  tlie  mode  of 
taking  and  perfecting  appeals,  and  the  time  within 
wliicli  sucli  appeals  shall  bo  taken,  shall  be  ap- 
plicable thereto:  provided,  however,  that  all  ap- 
peals lierein  must  be  talven  witliin  sixty  days  from 
the  date  of  the  entry  of  the  judgment  or  the  order 
complained  of.  The  party  filing  ihe  petition  as 
aforosnia,  i*f  he  file  a  couiplnint,  and  if  not,  the 
party  first  filing  such  complaint,  shall,  in  all  sub- 
sequent proceedings,  be  treated  as  the  plaintiff 
therein,  and  all  other  parties  so  appearing  shall 
be  trented  as  the  defendnnts  in  said  proceedings, 
and  all  such  defendants  sliall  set    forth    in    their 


647  PARTITION    AND    SETTLEMENT.  §  163o 

respective  answers  the  facts  constituting  their 
claim  of  heirship,  ownership,  or  interest  in  said  es- 
tate, with  such  particularity^  as  the  Court  may  re- 
quire, and  serve  a  copy  thereof  on  tlie  plaintiff. 
Evidence  in  support  of  all  issues  may  be  taken  or- 
ally or  by  deposition,  in  the  same  manner  as  pro- 
vided in  civil  actions.  Notice  of  the  talking  of  such 
depositions  shall  be  served  only  upon  the  parties 
or  the  attorneys  of  the  parties  so  appearing  in 
said  proceeding.  The  Court  shall  enter  a  default 
of  all  persons  failing  to  appear,  or  plead,  or  prose- 
cute, or  defend  their  rights,  as  aforesaid;  and  upon 
the  trial  of  the  issues  arising  upon  the  pleadings  in 
such  proceeding,  the  Court  shall  determine  the 
heirship  to  said  deceased,  the  ownership  of  his  es- 
tate, and  the  interest  of  each  respective  claimant 
thereto  or  therein,  and  persons  entitled  to  distri- 
bution thereof,  and  the  final  determination  of  the 
Court  thereupon  shall  be  final  and  conclusive  in 
the  distribution  of  said  estate,  and  in  regard  to 
the  title  to  all  the  property  of  the  estate  of  said 
deceased.  The  cost  of  the  proceedings  under  this 
section  shall  be  apportioned  in  the  discretion  of 
the  Court.  In  any  proceeding  under  this  section, 
the  Court  may  appoint  an  attorney  for  any  minor 
mentioned  in  said  proceedings  not  having  a  guar- 
dian. Nothing  in  this  section  contained  shall  be 
construed  to  exclude  the  right  upon  final  distribu- 
tion of  any  estate  to  contest  the  question  of  heir- 
ship, title,  or  interest  in  the  estate  so  distributed, 
where  the  same  shall  not  have  been  determined 
under  the  provisions  of  this  section;  but  where 
such  questions  shall  have  been  litigated  under  the 
provisions  of  this  section,  the  determination  there- 
of, as  herein  provided  shall  be  conclusive  in  the 
distribution  of  said  estate.  [New  section  approved 
March  16,  1885;  Stats.  1885,  209.] 

§  1665.    Upon   the   final   settlement   of  the  ac- 
counts of  the  executor  or  administrator,  or  at  any 


§  1666  PARTITION    AND    SETTLEMENT.  048 

subsequent  time,  upon  the  application  of  the  exec- 
utor or  administrator,  or  of  any  heir,  legatee,  or 
devisee,  the  court  must  proceed  to  distribute  the 
residue  of  the  estate  in  the  hands  of  the  executor 
or  administrator,  if  any,  among  the  persons  who 
by  law  are  entitled  thereto;  and  if  the  decedent 
has  left  a  surviving  child,  and  the  issue  of  other 
children,  and  any  of  them,  before  the  close  of 
the  administration,  have  died  while  under  age  and 
not  having  been  married,  no  administration  on 
such  deceased  child's  estate  is  necessary,  but  all 
the  estate  which  such  deceased  child  was  entitled 
to  by  inheritance  must,  without  administration, 
be  distributed  to  the  other  heir  at  law.  A  state- 
ment of  any  receipts  and  disbursements  of  the 
executor  or  administrator,  since  the  rendition  of 
his  final  accounts,  must  be  reported  and  filed  at 
the  time  of  malting  such  distribution;  and  a  settle- 
ment thereof,  together  w^ith  an  estimate  of  the 
expenses  of  closing  the  estate,  must  be  made  by 
th  court,  and  included  in  the  order  or  decree,  or 
the  court  or  judge  may  order  notice  of  the  settle- 
ment of  such  supplementary  account,  and  refer  the 
same  as  in  other  cases  of  the  settlement  of  ac- 
counts. 

Notice  of  settlement,  of  account:  Sec.  1633. 
Absent  heirs,  attorney  for:    Sec.  1718;  distribu- 
tion of  property  of:    Sec.  1693. 

§  1666.  In  the  order  or  decree,  the  court  must 
name  the  persons  and  the  proportions  or  parts  to 
which  each  shall  be  entitled, and  such  persons  may 
demand,  sue  for,  and  recover  their  respective 
shares  from  the  executor  or  administrator,  or  any 
person  having  the  same  in  possession.  Such  order 
or  decree  is  conclusive  as  to  the  rights  of  heirs, 
legatees,  or  devisees,  subject  only  to  be  reversed, 
set  aside,  or  modified  on  appeal. 

Recording:  Sec.  1719;  taxes  pavable  before:  Sec. 
1669. 


C49  PARTITION  AND  SETTLEMENT.   §§  1667,  1668 

Subsequent  issue  of  letters— on  discovery  of  es- 
tate: Sec.  1(598. 

Decree  of  distribution  where  will  annulled:  See 
sec.  1327,  ante. 

§  1667.  Upon  application  for  distribution,  after 
tinal  settlement  of  the  accounts  of  administration, 
if  tlie  decedent  was  a  nonresident  of  this  State, 
leaving-  a  will  which  has  been  duly  proved  or 
allowed  in  the  State' of  his  residence,  and  an  au- 
thenticated copy  thereof  has  been  admitted  to  pro- 
bate in  this  State,  and  it  is  necessary,  in  order  that 
the  estate,  or  any  part  thereof,  may  be  distributed 
according  to  the  will,  that  the  estate  in  this  State 
should  be  delivered  to  the  executor  or  administra- 
tor in  the  State  or  place  of  his  residence,  the  court 
may  order  such  delivery  to  be  made,  and,  if  neces- 
sary, order  a  sale  of  the  real  estate,  and  a  like  de- 
livery of  the  proceeds.  The  delivery,  in  accordance 
with  the  order  of  the  court,  is  a  full  discharge  of 
the  executor  or  administrator  with  the  will  an- 
nexed, in  this  State,  in  relation  to  all  property  em- 
braced in  such  order,  which,  unless  reversed  on 
appeal,  binds  and  concludes  all  parties  in  interest. 
Sales  of  real  estate,  ordered  by  virtue  of  this  sec- 
tion, must  be  made  in  the  same  manner  as  other 
sales  of  real  estate  of  decedents  by  order  of  the 
court.  [Amendment,  approved  April  16,  1880; 
Amendments  1880,  102.    In  effect  April  16,  1880.] 

Sales  of  real  estate:    Sec.  1536  et  seq. 

§  1668.  The  order  or  decree  may  be  made  on 
the  petition  of  the  executor  or  administrator,  or 
of  any  person  interested  in  the  estate.  When  such 
petition  is  tiled  the  clerk  of  the  court  must  set  the 
petition  for  hearing  by  the  court  and  give  notice 
thereof  by  causing  notices  to  be  posted  in  at  least 
three  public  places  in  the  county,  setting  forth  the 
name  of  the  estate,  the  executor  or  administrator. 

Code  Civ.   Proc— .o. 


§§  1669,  1670  PARTITION  AND  SETTLEMENT.  650 

and  the  time  appointed  for  the  hearing  of  the  peti- 
tion. If,  upon  the  hearing  of  the  petition,  the 
court,  or  a  judge  thereof,  should  deem  the  notice 
insufficient  from  any  cause,  he  may  order  such 
further  notice  to  be  given  as  may  seem  to  him 
iu-oper.  If  partition  be  applied  for,  as  provided 
in  this  chapter,  the  decree  of  distribution  shall  not 
(iivest  the  court  of  jurisdiction  to  order  partition, 
unless  the  estate  is  finally  closed.  [Amendment 
approved  March  3,  1SD3;  Stats.  1893,  71.  J 

§  1669.  Before  any  decree  of  distribution  of  an 
estate  is  made,  the  court  must  be  satisfied,  by  the 
oath  of  the  executor  or  administrator,  or  other- 
wise, that  all  State,  county,  and  municipal  taxes, 
legally  levied  upon  personal  property  of  the  es- 
tate, have  been  fully  paid.  [Amendment  approv- 
ed April  16,  1880;  amendments  1880,  102.  In  effect 
April  16th,   1880.] 

Similar  provision:    Political  Code,  sec.  3752. 

Taxes,  etc.— The  probate  judge  must  require  ev- 
ery administrator  and  executor  to  pay  out  of  the 
funds  of  the  estate  all  taxes  due  from  such  es- 
tate; and  no  order  or  decree  for  the  distribution 
of  any  property  of  any  decedent  among  the  heirs 
or  devisees  must  be  made  until  all  taxes  against 
tlie  estate  are  paid:   Polit.  Code,  sec.  3752. 

§  1670.  In  all  cases  where  a  decedent  shall 
have  left  a  will  in  and  by  the  terms  of  which  the 
testator  shall  have  limited  the  time  for  adminis- 
tration upon  an  estate  left  by  him,  and  the  execu- 
tor and  al^  of  the  legatees  or  devisees  named  in 
the  will  shall  file  and  present  to  the  court  a  peti- 
tion, in  writing,  representing  that  it  will  be  for 
tlie  best  interests  of  the  estate  and  of  the  benefi- 
ciaries under  the  will  to  have  the  administration 
upon  the  estate  continued  for  a  longer  period  of 
1im<'  than  that  designated  in  such  will,  and  that 
it  would  be  injurious  to  the  estate  ntid  to  such 
beneficiaries  to  have  the  administration  brought 


R51  PARTITION    AND    SETTLEMENT.  §  1670 

to  a  close  at  the  date  therefor  designated  iu  the 
will,  the  court  shall  then  set  a  day  for  the  hearing 
of  said  petition;  and  notice  thereof  shall  be  served 
on  all  persons  interested  in  the  estate,  in  the  same 
manner  that  smmons  in  civil  actions  is  served. 
Upon  the  day  set  for  such  hearing  for  upon  some 
other  day  to  which  the  hearing  may  have  been 
continued),  the  court  shall  proceed  to  hear  proofs 
touching  the  representations  made  in  such  peti- 
tion, and  any  person  interested  in  the  estate  may 
also  present  counter-proofs  in  opposition  to  said 
application;  and  if,  upon  such  hearing,  it  be  made 
to  appear  to  the  court  that  the  representations 
made  by  the  petitioners  in  their  said  petition  con- 
tained be  true,  the  court  may  then,  by  its  order 
and  decree  in  that  behalf,  decree  and  direct  that 
the  administration  upon  the  estate  continue  for 
and  during  such  further  period  of  time  as  in  its 
judgment  will  best  subserve  the  interests  of  the 
estate  and  of  the  beneficiaries  under  said  will; 
provided,  however,  that  if,  at  any  time  during  the 
period  for  which  the  administration  upon  the  es- 
tate shall  have  been  thus  continued,  the  executor, 
or  any  one  or  more  of  the  legatees  or  devisees, 
shall  present  to  the  court  his  or  their  petition,  rep- 
resenting that  it  has  become  necessary  for  the 
best  interests  of  the  estate  and  of  the  beneficiaries 
under  the  will  to  have  the  administration  upon  the 
estate  closed,  the  court  shall  then  set  a  day  for 
the  hearing  of  said  last-named  petition;  and  notice 
thereof  shall  be  given  in  the  same  manner,  and 
the  same  proceedings  be  had  thereupon,  as  shall 
have  been  given  for  and  had  upon  the  hearing 
of  the  petition  asliing  for  the  continuation  of  such 
administration.  And  if,  upon  such  hearing,  it 
shall  be  made  to  appear  to  the  court  that 
the  representations  made  by  such  petitioners  or 
petitioner  (as  the  case  may  be)  are  true,  the  court 
shall  then,  by  its  order  and  decree  in  that  behalf, 
decree  and  direct  that  the  administration  upon  the 


§  1675  PARTITION    AND    SETTLEMENT.  652 

estate  be  closed  as  soon  thereafter  as,  under  the 
cu'cumstances,  shall  be  practicable.  [New  section 
added  March  31,  1891;  Stats.  1891,  423;  in  effect 
immediately.] 


ARTICLE  III. 

DISTRIBUTION    AND    PARTITION. 

§  1675.     Estate   in   common.     Commissioners. 

§  1676.  Partition  and  notice  thereof,  and  the  time  of  filing 
petition. 

§  1677.     Estate  in  different  counties,   how  divided. 

§  1678.  Partition  may  be  made,  although  some  of  the  heirs, 
etc.,   have  parted  with  their  interest. 

§  1379.     Shares  to  be  set  out  by  metes  and  bounds. 

§  1680.  Whole  estate  may  be  assigned  to  one,  in  certain 
cases. 

§  1681.  Payments  for  equality  of  partition,  by  whom  and 
how. 

§  1682.     Estate  may  be  sold. 

§  1683.  To  give  notice  to  all  persons  and  guardians  before 
partition.     Duties   of    commissioners. 

§  1684.     To  make  report,   and  partition  to  be  recorded. 

§  1685.  When  commissioners  to  make  partition  are  not  nec- 
essary. 

§  1686.    Advancements  made  to  heirs. 

§  1675.  When  the  estate,  real  or  personal,  as 
signed  by  the  decree  of  distribution  to  two  or  more 
heirs,  devisees,  or  legatees,  is  in  common  and  undi 
vided,  and  the  respective  shares  are  not  separated 
and  distinguished,  partition  or  distribution  may  be 
made  by  three  disinterested  persons,  to  be  ap- 
pointed commissioners  for  that  purpose  by  the 
court,  who  must  be  duly  sworn  to  the  faithful  dis- 
charge of  tlieir  duties.  A  certified  copy  of  the  or 
der  of  their  appointment,  and  of  the  order  or  de 
cree  assigning  and  distributing  the  estate  must  be 
issued  to  tliem  as  tlieir  Avarrant,  and  their  oath 
must  be  indorsed  thereon.  Upon  consent  of  the 
parties,  or  when  the  court  deems  it,  proper  and 
just,   it  is  sutficient  to  appoint  one  commissioner 


G53  PARTITION    AND    SETTLEMENT.    §§  1676-1678 

only,  who  has  the  same  authority  and  is  governed 
by  the  same   rules   as    if    three  were   appointed. 
[Amendment    approved    April    16,    1880;    Amend- 
ments 1880,  103.    In  effect  July  16,  1880.] 
Attorney  appointed  by  the  Court:    Sec.  1718. 

§  1676.  Such  partition  may  be  ordered  and  had 
in  the  Superior  Court  on  the  petition  of  any  person 
interested.  But  before  commissioners  are  ap- 
pointed, or  partition  ordered  by  the  court  as  di- 
rected in  this  chapter,  notice  thereof  must  be  given 
to  all  persons  interested  who  reside  in  this  State, 
or  to  their  guardians,  and  to  the  agents,  attorneys, 
or  guardians,  if  any  in  this  State,  of  such  as  re- 
side out  of  this  State,  either  personally  or  by  pub- 
lic notice,  as  the  court  may  direct.  The  petition 
may  be  filed,  attorneys,  guardians,  and  agents  ap 
pointed,  and  notice  given  at  any  time  before  the 
order  or  decree  of  distribution,  but  the  commis- 
sioners must  not  be  appointed  until  the  order  or 
decree  is  made  distributing  the  estate.  [Amend- 
ment approved  April  16,  1880;  Amendments  1880, 
103.    In  effect  July  16th,  1880.] 

§  1677.  If  the  real  estate  is  in  different  coun 
ties,  the  court  may,  if  deemed  proper,  appoint  com 
missioners  for  all,  or  different  commissioners  for 
each  county.  The  estate  in  each  county  must  be 
divided  separately  among  the  heirs,  devisees,  or 
legatees,  as  if  there  was  no  other  estate  to  be  di- 
vided; but  the  commissioners  first  appointed  must, 
unless  otherwise  directed  by  the  court,  make  di- 
vision of  such  real  estate  wherever  situated  with- 
in this  State.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  103.  In  effect  July  16, 
1880.] 

§  1678.  Partition  or  distribution  of  the  real  es- 
tate may  be  made  as  provided  in  this  chapter,  al 
though  some  of  the  original  heirs,  legatees,  or  dev- 


§§  1679,  1G80  PARTITION  AND  SETTLEMENT.  G54 

isees  may  have  conveyed  their  shares  to  other 
persons,  and  such  shares  must  be  assigned  to  the 
person  holding  the  same,  in  the  same  manner  as 
they  otherwise  would  have  been  to  such  heirs, 
legatees,  or  devisees. 

§  1679.  When  both  distribution  and  partition 
are  made,  the  several  shares  in  the  real  and  per- 
sonal estate  must  be  set  out  to  each  individual 
in  proportion  to  his  right,  by  metes  and  bounds, 
or  description,  so  that  the  same  can  be  easily  dis- 
tinguished, unless  two  or  more  of  the  parties  in- 
terested consent  to  have  their  shares  set  out  so  as 
to  be  held  by  them  in  common  and  undivided. 

§  1680.  When  the  real  estate  cannot  be  divided 
without  prejudice  or  inconvenience  to  the  own- 
ers, the  court  may  assign  the  whole  to  one  or  more 
of  the  parties  entitled  to  share  therein,  who  will 
accept  it,  always  preferring  the  males  to  the  fe- 
males, and  among  children,  preferring  the  elder  to 
the  younger.  The  parties  accepting  the  whole 
must  pay  to  the  other  parties  interested  their 
just  proportion  of  the  true  value  thereof,  or  secui-e 
the  same  to  their  satisfaction,  or  in  case  of  the 
minority  of  such  party,  then  to  the  satisfaction  of 
his  guardian;  and  tlie  true  value  of  the  estate 
must  be  ascertained  and  reported  by  the  commis- 
sioners. When  the  commissioners  appointed  to 
malse  partition  are  of  the  opinion  that  the  real  es- 
tate cannot  be  divided  without  prejudice  or  incon- 
venience to  the  owners,  they  must  so  report  to  the 
court,  and  recommend  that  the  whole  be  assigned 
as  herein  provided,  and  must  find  and  report  the 
true  value  of  such  real  estate.  On  filing  the  re- 
port of  the  commissioners,  and  on  making  or  se- 
curing tlie  payment  as  before  provided,  the  court, 
if  it  appears  just  and  proper,  must  confirm  the  re- 
port, and  thereupon  the  assignment  is  complete, 
and  the  title  to  the  whole  of  such  real  estate  vests 


655  PARTITION    AND    SETTLEMENT.    §§  16S1-1683 

in  the  person  to  whom  the  same  is  so  assigned. 
[Amendment  approved  April  16,  1880;  Amend- 
ments 18S0,  103.    In  effect  July  16th,  1880.] 

§  1681.  "When  any  tract  of  land  or  tenement  is 
of  greater  value  than  any  one's  share  in  the  es- 
tate to  be  divided,  and  cannot  be  divided  without 
injury  to  the  same,  it  may  be  set  off'  by  the  com- 
missioners appointed  to  make  partition  to  any  of 
the  parties  who  will  accept  it,  giving  preference 
as  prescribed  in  the  preceding  section.  The  party 
accepting  must  pay  or  secure  to  the  others  such 
sums  as  the  commissioners  shall  award  to  malie 
the  partition  equal,  and  the  commissioners  must 
make  their  award  accordingly;  but  such  partition 
must  not  be  established  by  the  court  until  the  sums 
awarded  are  paid  to  the  parties  entitled  to  the 
same,  or  secured  to  their  satisfaction. 

§  1682.  When  it  appears  to  the  court,  from  the 
commissioners'  report,  that  it  cannot  otherwise  be 
fairly  divided  and  should  be  sold,  the  court  may 
order  the  sale  of  the  whole  or  any  part  of  the  es- 
tate, real  or  personal,  by  the  executor  or  admin- 
istrator, or  by  a  commissioner  appointed  for  that 
purpose,^  and  the  proceeds  distributed.  The  sale 
must  be  conducted,  reported,  and  confirmed,  in  the 
same  manner  and  under  the  same  requirements 
provided  in  article  four,  chapter  seven,  of  this 
title. 

§  1683.  Before  any  partition  is  made  or  any 
estate  divided,  as  provided  in  this  chapter,  notice 
must  be  given  to  all  persons  interested  in  the  par- 
tition, their  guardians,  agents,  or  attorneys,  by 
the  commissioners,  of  the  time  and  place  when 
and  where  they  shall  proceed  to  make  partition. 
The  commissioners  may  take  testimony,  order  sur- 
veys, and  take  such  other  steps  as  may  be  neces- 
sary to  enable  them  to  form  a  judgment  upon  the 
mntters  before  them. 


§§  1684-1686   PARTITION   AND    SETTLEMENT.  656 

§  1684,  The  commissioners  must  report  their 
proceedings,  and  the  partition  agreed  upon  by 
them,  to  the  court,  in  writing,  and  the  court  may, 
for  sufficient  reasons,  set  aside  the  report  and  com- 
mit the  same  to  the  same  commissioners,  or  ap- 
point others;  and  when  such  report  is  finally  con- 
firmed, a  certified  copy  of  the  judgment,  or  de- 
cree of  partition  made  thereon,  attested  by  the 
clerlv  under  the  seal  of  the  Court,  must  be  recorded 
in  the  oflice  of  the  recorder  of  the  county  where 
the  lands  lie.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  104.  In  effect  July  16, 
1880.] 

§  1685.  When  the  court  makes  a  judgment  or 
decree  assigning  the  residue  of  any  estate  to 
one  or  more  persons  entitled  to  the  same,  it  is  not 
necessary  to  appoint  commissioners  to  make  parti- 
tion or  distribution  thereof,  unless  the  parties  to 
whom  the  assignment  is  decreed,  or  some  of  them, 
request  that  such  partition  be  made.  [Amendment 
approved  April  16,  1880;  Amendments  1880,  104. 
In  effect  July  16,  1880.] 

§  1686.  All  questions  as  to  advancements 
made,  or  alleged  to  have  been  made,  by.  the  de- 
cedent to  his  heirs,  may  be  heard  and  determined 
by  the  Court,  and  must  be  specified  in  the  decree 
assigning  and  distributing  the  estate;  and  the  final 
judgment  or  decree  of  the  Court,  or  in  case  of  ap- 
peal, of  the  Supreme  Court,  is  binding  on  all  par- 
ties interested  in  the  estate.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880.  104.  In 
effect  July   16th,   1880.] 


fi57  PARTITION    AND    SETTLEMENT.  §  1391 


ARTICLE   IV. 

AGENTS     FOR     ABSENT     OR     INTERESTED     PARTIES. 
DISCHARGE   OP  EXECUTOR  OR  ADMINISTRATOR. 

§  1691.     Court    may    appoint    agent    to    take    possession    for 

absentees. 
§  1692.     Agent  to  give  bond,  and  his  compensation. 
§  1693.     Unclaimed  estate,  how  disposed  of. 
§  1694.     When    real    and    personal    property    of    absentee    to 

be  sold. 
§  1695.     Liability  of  agent  on  his  bond. 
§  1696.     Certificate    to   claimant. 
§  1697.     Final  settlement,   decree,   discharge. 
§  1698.     Discovery  of  property. 

§  1691.  When  any  estate  is  assigned  or  dis- 
tributed by  a  .iudgment  or  decree  of  the  court,  as 
provided  in  this  chapter,  to  any  person  residing 
out  of,  and  having  no  agent  in  this  state,  and  it  is 
necessary  tliat  some  person  shouhl  be  autliorized 
to  talvc  possession  and  cliarge  of  the  same  for  the 
benefit  of  such  absent  person,  tlie  court  may  ap- 
point an  agent  for  that  purpose  and  authorize  him 
to  talve  charge  of  such  estate,  as  well  as  to  act 
for  such  absent  person  in  the  distribution;  pro- 
vided, that  if  such  estate  be  in  money  when  so  as- 
signed or  distributed,  the  executor  or  administra- 
tor of  such  estate  may  deposit  the  shares  of  each 
person,  and  in  the  name  of  said  person,  as  far  as 
known,  as  designated  in  said  assignment  or  decree 
of  distribution,  with  the  county  treasurer  of  the 
county  in  wliich  said  estate  is  being  probated, 
who  shall  give  a  receipt  for  the  same,  and  be  liable 
upon  his  official  bond  therefor;  and  said  receipt 
shall  be  deemed  and  receiA'ed  by  the  court  or 
judge  thereof  as  a  voucher  in  favor  of  said  exec- 
utor or  administrator,  with  the  same  force  and  ef- 
fect as  if  executed  by  such  assignee,  legatee,  or 
distributee;  and  said  section  as  amended  shall  be 
applicable  to  any  and  all  estates  noAV  pending  in 


§§  1692-1694   PARTITION    AND    SETTLEMENT.  658 

which  a  decree  of  final  discharge  has  not  been 
granted.  [Amendment  approved  March  26,  1895; 
Stats.  1895,  74.    In  effect  March  2G,  1895.] 

§  1692.  The  agent  must  execute  a  bond  to  the 
State  of  California,  to  be  approved  by  the  court,  or 
a  .iudge  thereof,  conditioned  that  he  shall  faith- 
fully manage  and  account  for  the  estate.  The  court 
appointing  sucli  agent  may  allow  a  reasonable 
sum  out  of  the  profits  of  the  estate  for  his  services 
and  expenses.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  104.  In  effect  July  16, 
1880.] 

§  1693.  When  personal  property  remains  in 
the  hands  of  the  agent  unclaimed  for  a  year,  and 
it  appears  to  the  court  that  it  is  for  the  benefit 
of  those  interested,  it  shall  be  sold  under  the  or- 
der of  the  court,  and  the  proceeds,  after  deducting 
the  expenses  of  the  sale  allowed  by  the  court, 
must  be  paid  into  the  State  treasury.  When  the 
paj'ment  is  made,  the  agent  must  talvc  from  the 
treasury  duplicate  receipts,  one  of  which  he  must 
file  in  the  office  of  the  controller  and  the  ,other 
in  the  court.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  p.  104.  In  effect  July  16, 
1880.] 

Unclaimed  property:  See  sees.  1269-1272. 

§  1694.  Tlie  agent  must  render  the  court  ap- 
pointing him,  annually,  an  account,  showing: 

1.  The  value  and  character  of  the  property  re- 
ceived by  him.  what  portion  tliereof  is  still  on 
hand,  what  sold,  and  for  what; 

2.  The  income  derived  therefrom; 

3.  The  taxes  and  assessments  im])osed  thereon, 
for  what,  and  whether  paid  or  unpaid; 

4.  Expenses  incurred  in  the  care,  protection, 
and  management  thereof,  and  whether  paid  or 
unpaid.  "\Mien  filed,  tlie  court  may  examine  wit- 
nesses and  talvc  proofs  in  regard  to  the  account; 


659  PARTITION    AND    SETTLEMENT.    §§  1695-1698 

and  if  satisfied  from  such  accounts  and  proofs 
that  it  will  be  for  the  benefit  and  advantage  of 
the  persons  interested  therein,  the  court  may,  by 
order,  direct  a  sale  to  be  made  of  the  whole  or 
such  parts  of  the  real  or  personal  property  as 
shall  appear  to  be  proper,  and  the  purchase  money 
to  be  deposited  in  the  State  treasury.  [Amend- 
ment approved,  April  16,  ISSO;  Amendments  1880, 
p.  105.     In  effect  July  16,  1880.] 

§  1695.  The  agent  is  liable  on  his  bond  for  the 
care  and  preservation  of  the  estate  while  in  his 
hands,  and  for  the  payment  of  the  proceeds  of  the 
sale  as  required  in  the  preceding  sections,  and 
may  be  sued  thereon  by  any  person  interested. 

§  1696.  When  any  person  appears  and  claims 
the  money  paid  into  the  treasury,  the  court  mak- 
ing the  distribution  must  inquire  into  such  claim, 
and  being  first  satisfied  of  his  right  thereto,  must 
grant  him  a  certificate  to  that  effect,  under  its 
seal;  and  upon  the  presentation  of  the  certificate 
to  him,  the  controller  must  draw  his  warrant  on 
the  treasurer  for  the  amount.  [Amendment  ap- 
proved, April  16,  1880:  Amendments  1880,  p.  105. 
In  effect  July  16,  1880.] 

§  1697.  When  the  estate  has  been  fully  ad- 
ministered, and  it  is  shown  by  the  executor  or 
administrator,  by  the  production  of  satisfactory 
vouchers,  that  he  has  paid  all  sums  of  money  due 
from  him.  and  delivered  up,  under  the  order  of  the 
court,  all  the  property  of  the  estate  to  the  parties 
entitled,  and  performed  all  the  acts  lawfully  re- 
quired of  him,  the  court  must  make  a  judgment 
or  decree  discharging  him  from  all  liability  to  be 
incurred  thereafter. 

§  1698.  The  final  settlement  of  an  estate,  as  in 
tliis  chapter  provided,  shall  not  prevent  a  subse- 
quent issue  of  letters  testamentary,  or  of  admin- 


§  1699  PARTITION    AND    SETTLEMENT.  66(> 

istration,  or  of  administration  with  the  will  an- 
nexed, if  other  property  of  the  estate  be  discov- 
ered, or  if  it  become  necessary  or  proper  for  any 
cause  that  letters  should  be  again  issued. 
[Amendment  approved,  March  24,  1874;  Amend- 
ments, 1873-4,  p.  373.     In  effect  July  1,  1874.] 


ARTICLE  V. 

[New  article  added   March  19,   1889;   Stats.   1889, 
p.  337.] 

ACCOUNTS  OF  TRUSl  EES— DISTRIBUTION. 

§  1699.    Superior  court  not  to  lose  jurisdiction  by  final  juris- 
diction. 
^  17C0.    Compensation  of  trustees, 
g  1701.    Appeal  from  decree  settling  account. 
§  1702.    Trustee  may  decline. 
g  1703.    Jurisdiction. 
g  1703>^.Distribution  to  treasurer. 

§  1699.  Where  any  trust  has  been  created  by 
or  under  any  will  to  continue  after  distribution, 
the  superior  court  shall  not  lose  jurisdiction  of  the 
estate  by  final  distribution,  but  shall  retain  juris- 
diction thereof  for  the  purpose  of  the  settlement 
of  accounts  under  the  trust.  And  any  trustee  cre- 
ated by  any  will,  or  appointed  to  execute  any 
trust  created  by  any  will,  may,  from  time  to  time, 
pending  the  execution  of  his  trust,  or  may  at  the 
termination  thereof,  render  and  pray  for  the  set- 
tlement of  his  accounts  as  such  trustee,  before 
the  superior  court  in  which  the  will  Avas  probated, 
and  in  the  manner  provided  for  the  settlement  of 
the  accounts  of  executors  and  administrators. 
The  trustee,  or  in  case  of  his  death,  his  legal  rep- 
resentatives, shall  for  that  purpose  present  to  the 
court  his  verified  petition,  setting  forth  his  ac- 
counts in  detail,  together  with  a  verified  statement 
of  said  trustee,  giving  the  names  and  postoffice 
addresses,  if  known,  of  the  cestuis  que  trust,  and 


661  PARTITION  AND  SETTLEMENT.   §§  1700,  1701 

upou  the  tiling  thereof,  the  court  or  judge  shall 
tix  a  day  for  the  hearing.  The  clerk  must  there- 
upon give  notice  thereof  of  not  less  than  ten  days, 
by  causing  notices  to  be  posted  in  at  least  three 
public  places  in  the  county,  setting  forth  the  name 
of  the  trust  estate,  the  trustee,  and  the  day  ap- 
pointed for  the  settlement  of  the  account.  The 
court,  or  a  judge  thereof,  may  order  such  further 
notice  to  be  given  as  may  be  proper,  and  any  such 
trustee  may  in  the  discretion  of  the  court,  upon 
application  of  any  beneficiary  of  the  trust,  be  or- 
dered to  appear  and  render  his  account,  after  be- 
ing cited  by  service  of  citation,  as  provided  for 
the  service  of  summons  in  civil  cases.  Upon  the 
filing  of  the  account  so  ordered,  the  same  pro- 
ceedings for  the  hearing  and  settlement  thereof 
shall  be  had  as  are  hereinabove  provided. 
[Amendment  approved  March  16,  1895.  Stats. 
1889,  p.  338.    In  effect  March  19,  1889.] 

§  1700.  On  all  such  accountings  the  court 
shall  allow  the  trustee  or  trustees  the  proper  ex- 
penses and  such  compensation  for  services  as  the 
court  may  adjudge  to  be  just  and  reasonable,  and 
shall  apportion  such  compensation  among  the 
trustees  according  to  the  services  rendered  by 
them  respectively,  and  may  in  its  discretion  fix  a 
yearly  compensation  for  the  trustee  or  trustees 
to  continue  as  long  as  the  court  may  judge  proper. 
[Amendment  approved  March  19,  1889;  Stats. 
1889,  p.  G4.    In  effect  March  19,  1895.] 

§  1701.  From  a  decree  settling  such  account 
appeal  may  be  taken  in  the  manner  provided  for 
an  appeal  from  a  decree  settling  the  account  of 
an  executor  or  administrator.  The  decree  of  the 
superior  court,  if  atfirmed  on  appeal  or  becoming 
final  Tvithout  appeal,  shall  be  conclusive. 
[Amendment  approved  March  19,  1889;  Stats. 
1889.  p.  338.     In  effect  March  19,  1889.] 

Code  Civ.   Proc— 50. 


§§  1702,  1703  PARTITION  AND  SETTLEMENT.  662 

§  1702.    Any  person  named  or  designated  as  a 
trustee  in  any  will  wliicli  lias  been  or  shall  here- 
after be  admitted  to  probate  in  this  state  may,  at 
any  time  before  final  distribution,  decline  to  act 
as  such  trustee,  and  an  order  of  court  shall  there- 
upon be  made  accepting  such  resignation;  but  the 
declination  of  any  such  person  who  has  qualified 
as  executor  shall  not  be  accepted  by  the  court, 
unless  the  same  shall  be  in  writing  and  filed  in 
the  court  in  which  the  administration  is  pending, 
and  such  notice  shall  be  given  thereof  as  is  re- 
quired upon  a  petition  praying  for  letters  of  ad- 
ministration.    The   court   in  which  the  adminis- 
\   tration  is  pending  shall  have  power  at  any  time 
f^  before  final  distribution  to  appoint  some  fit  and 
y  proper  person  to  fill  any  vacancy  in  the  ofiice  of 
trustee  under  the  will,   whether    resulting    from 
^  such  declination  or  otherwise;  provided,   it  shall 
^  be  by  law  necessary  that  such  vacancy  shall  be 
^    filled;  and  every  person  so  appointed  shall,  before 
\  acting  as  trustee,  give  a  bond  such  as  is  required 

V  by  section  one  thousand  three  hundred  and  eigh- 
(^  ty-eight  of  this  code,  of  a  person  to  whom  letters 
V^  of  administration  are  directed  to  issue.     Such  ap- 

V  pointment  may  be  made  upon  the  written  appll- 
_    cation  of  any  person  interested  in  the  trust,  and 

yv  shall  only  be  made  after  notice  to  all  parties  in- 

V  terested  in  the  trust,  given  in  the  same  manner  as 
\   notice  is  required  to  be  given  of  the  hearing  upon 
^   a  petition  for  the  probate  of  a  will.     In  each  of 
"^^    the  preceding  cases  the  court  may  order  such  fur- 
"^    ther  notice  as  shall  seem  necessary.     In  accept- 
ing any  declination  under  the  provisions  of  this 
section,  the  court  may  make  and  enforce  any  or- 
der which  may  be  necessary  for  the  preservation 
of  the  estate.     [New  section  added  Marcli  2.  1891; 
Stats.  180],  p.  in.  to  talve  effect  immediately.] 

§  1703.    The  provisions  of  the  next  preceding 
section  shall  apply  in  all  cases  where  a  final  de- 


6fi3  PARTITION    AND    SETTLEMENT.  §  ITOSVa 

cree  of  distribution  has  not  been  made;  but  the 
jurisdiction  given  by  said  section  shall  not  ex- 
clude, in  cases  to  which  it  applies,  the  jurisdiction 
now  possessed  by  the  courts  of  this  State.  [New 
section  approved  March  2,  1891;  Stats.  1891,  p.  16. 
To  take  effect  immediately.] 

§  1703M>.  When  any  estate  is  distributed  by 
the  judgment  or  decree  of  the  court,  as  provided 
in  this  chapter,  to  a  minor  or  incompetent  per- 
son who  has  no  lawful  guardian  to  receive  the 
same,  or  person  authorized  to  receipt  therefor,  the 
portion  of  said  estate  consisting  of  money  shall 
be  paid  to  and  deposited  with  the  County  Treas- 
urer of  the  county  in  which  the  estate  is  being 
probated,  who  shall  give  a  receipt  for  the  same, 
and  shall  be  liable  on  his  official  bond  therefor; 
and  said  receipt  shall  be  deemed  and  received  by 
the  court  or  judge  thereof  as  a  voucher  in  favor  of 
said  executor  or  administrator,  with  the  same 
force  and  effect  as  if  executed  by  the  distributee 

i  thereof.  And  this  section  shall  be  applicable  to 
'     any  and  all  estates  now  pending  in  which  a  final 

;^  decree  of  discharge  has  not  been  granted.  Said 
moneys  so  paid  into  the  county  treasury,  shall  be 

^  paid  out,  upon  petition  to,  and  the  order  of  the 
superior  court  or  judge  thereof,  to  the  person  en- 
titled to  receive  the  same.  [Approved  February 
26,  1897;  Stats.  1897,  ch.  40.  In  effect  immediate- 
ly.] 


§  1704  ORDERS,   DECREES,   ETC. 


CHAPTER  XII. 

OF    ORDERS,      DECREES,      PROCESS,    MINUTES,     REC- 
ORDS, TRIALS,  AND  APPEALS. 

§  1704.     Orders  and  decrees  to  be  entered  in  minutes. 

§  1705.     How   often  publication  to  be   made. 

§  1706.  Recorded  decree  or  order  to  impart  notice  from 
date  of  filing. 

I  1707.     Citation,  how  directed  and  what  to  contain. 

I  1708.     Citation,   how  issued. 

I  1709.     Citation,    how   served. 

§  1710.     Personal  notice  given  by  citation. 

§  1711.     Citation  to  be  served  five  days  before  return. 

§  1712.  One  description  of  real  estate  sought  to  be  sold  be- 
ing published,   is  sufficient  for  all   purposes. 

5  1713.     Rules  of  practice  generally. 

§  1714.     New  trials  and  appeals. 

§  1715.    Within  what  time  appeal  must  be  taken. 

§  1713.  Issues  joined  in  Probate  Court,  how  tried  and  dis- 
posed of. 

5  1717.  Court  to  try  case  when  no  jury  is  demanded.  How 
and  what  issues  to  be  tried. 

§  1718.  Court  to  appoint  attorney  for  minor  or  absent 
heirs,  devisees,  legatees,  or  creditors,  when,  and 
what  compensation  he  is  to  receive. 

§  1719.     Decree   relative   to   homestead,   and  effect   thereof. 

§  1720.     Costs,  by  whom  paid  in  certain  cases. 

§  1721.  Executor,  etc.,  to  be  removed  when  committed  for 
contempt. 

§  1722.     Service   upon   guardian. 

§  1723.     Termination  of  life  estate. 

§  1704.  Orders  and  decrees  made  by  the  court, 
or  a  judge  thereof,  in  probate  proceedinsrs.  need 
not  recite  tlie  existence  of  facts,  or  tlie  perform- 
ance of  acts,  upon  which  tlie  jurisdiction  of  the 
court  or  judse  may  depend,  but  it  sliall  only  be 
necessary  that  they  contain  the  matters  ordered 
or  adjudged,  except  as  otherAvise  provided  in  this 
title.  All  orders  and  decrees  of  the  court  or  judge 
must  be  entered  at  length  in  the  minute  book  of 
the  court.  [Amendment  approved  April  10.  18S(): 
Amendments  1880.  p.  104.  In  effect  April  10, 
1880.] 


665  ORDERS,    DECREES,    ETC.  §§  1705-1709 

§  1705.  AVlieii  any  publicatiou  is  ordered,  such 
publication  must  be  made  daily,  or  otherwise  as 
often  during  the  prescribed  period  as  the  paper  is 
regularly  issued,  unless  otherwise  provided  in  this 
title.  The  court,  or  a  judge  thereof,  may,  hoAv- 
ever,  order  a  less  number  of  publications  during 
the  period.  [Amendment  approved  April  1(3,  1880; 
Amendments  1880,  p.  104.  In  effect  April  IG, 
1880.] 

Affidavit  of  publication:  Sees.  2010,  2011. 

§  1706.  When  it  is  provided  in  this  title  that 
any  order  or  decree  of  the  court,  or  a  judge  there- 
of, or  a  copy  thereof,  must  be  recorded  in  the  of- 
fice of  the  county  recorder,  from  the  time  of  filing 
the  same  for  record,  notice  is  imparted  to  all  per- 
sons of  the  contents  thereof.  [Amendment  ap- 
proved April  16,  1880;  Amendments  1880,  p.  105. 
In  effect  April  16,  1880.] 

§  1707.  Citations  must  be  directed  to  the  per- 
son to  be  cited,  signed  by  the  clerk  and  issued  un- 
der the  seal  of  the  court,  and  must  contain — 

1.  The  title  of  the  proceeding; 

2.  A  brief  statement  of  the  nature  of  the  pro- 
ceeding; 

3.  A  direction  that  the  person  cited  appear  at 
a  time  and  place  specified. 

§  1708.  The  citation  may  be  issued  by  the 
clerk  upon  the  application  of  any  party  without 
an  order  of  the  judge,  except  in  cases  in  which 
such  order  is  by  the  provisions  of  this  title  ex- 
pressly required. 

§  1709.  The  citation  must  be  served  in  the 
same  manner  as  a  summons  in  a  civil  action. 

Service  of  citation — time  for,  sec.  1711;  same 
manner  as  summons  in  a  civil  action,  see  sec.  410 
et  seq. 


§§  1710-1716  ORDERS,    DECREES,    ETC.  666 

§  1710.  AVlien  personal  notice  is  required,  and 
no  mode  of  giving  it  is  prescribed  in  tliis  title,  it 
must  be  given  by  citation. 

§  1711.  When  no  other  time  is  specially  pre- 
scribed in  this  title,  citations  must  be  served  at 
least  five  days  before  the  return  day  thereof. 

§  1712.  When  a  complete  description  of  the 
real  property  of  an  estate  sought  to  be  sold  has 
been  given  and  published  in  a  newspaper,  as  re- 
quired in  the  order  to  show  cause  why  the  sale 
should  not  be  made,  such  description  need  not  be 
published  in  any  subsequent  notice  of  sale  or  no- 
tice of  a  petition  for  the  confirmation  thereof;  it 
is  sufficient  to  refer  to  the  description  contained 
in  the  publication  of  the  first  notice,  as  being 
proved  and  on  file  in  the  court. 

§  1713.  Except  as  otherwise  provided  in  this 
title,  the  provisions  of  part  two  of  this  Code  are 
applicable  to  and  constitute  the  rules  of  practice 
in  the  proceedings  mentioned  in  this  title. 

Part  II:  See  ante,  sees.  307  et  seq. 

§  1714.  The  provisions  of  part  two  of  this 
Code,  relative  to  new  trials  and  appeals— except 
in  so  far  as  they  are  inconsistent  with  the  provis- 
ions of  this  title— apply  to  the  proceedings  men- 
tioned in  this  title. 

See  ante,  sees.  656  et  seq.,  and  sees.  936  et  seq. 

§  1715.  The  appeal  must  be  taken  within  six- 
ty days  after  the  order,  decree,  or  judgment  is  en- 
tered. 

Appeals  from  superior  courts— in  probate  mat- 
ters, sec.  963,  subd.  3. 

§  1716.  All  issues  of  fact  joined  in  probate 
proceedings  must  be  tried  in  conformity  with  the 
requirements  of  article  two,  chapter  two,  of  this 


667  ORDERS,   DECREES,   ETC.  §§  1717,  1718 

title,  and  in  all  such  proceedings  the  party  affirm- 
ing is  plaintiff,  and  the  one  denying  or  avoiding 
is  defendant.  Judgments  therein,  on  the  issue 
joined,  as  well  as  for  costs,  may  be  entered  and 
enforced  by  execution  or  otherwise  bj'  the  court, 
as  in  civil  actions.  [Amendment  approved  April 
16,  1880;  Amendments  1880,  p.  106.  In  effect  July 
16,  1880.] 
Trial  of  issues— see  sec.  1717. 

§  1717.    If  no  jury    is    demanded,    the    court 

must  try  the  issues  joined.    If  on  written  demand 

a  jury  is  called  by  either  party,  and  the  issues  are 

not  sufficiently  made  up  by  the  written  pleadings 

.on  file,  the  court,  on  due  notice  to  the  opposite 

^  party,   must  settle  and  frame    the    issues  to  be 

*-   tried,  and  submit  the  same,  together  with  the  evi- 

*^    dence  of  each  party,  to  the  jury,  on  which  they 

h!    must  render  a  verdict.     Either  may  move  for  a 

^    new  trial,  upon  the  same  grounds  and  errors,  and 

N    in  like  manner,  as  provided  in  this  Code  for  civil 

^^  actions. 

<S     New  trials:  See  sec.  1714. 

§  1718.    At  or  before  the  hearing    of  petitions 
and  contests  for  the  probate  of  wills;  for  letters 
testamentary  or  of   administration;   for   sales   of 
J  real  estate,  and  confirmations  thereof;  settlements, 
'^  partitions,    and   distributions   of    estates,     setting 
V  apart     homesteads,    and     all     other     proceedings 
^  where  all  the  parties  interested  in  the  estate  are 
^  required  to  be  notified  thereof;  the  court  may,  in 
k;^  its  discretion,  appoint  some  competent  attorney  at 
o  law  to  represent  in  all  such  proceedings,  the  dev- 
'^  isees,    legatees,    heirs,  or    creditors    of    the    dece- 
^   dent,  who  are  minors  and  have  no  general  guardian 
in  the   county,   or  who  are  non-residents   of  the 
State;  and  those  interested  who,  though  they  are 
neither  such  minors  or  non-residents,  are  unrepre- 
sented.   The  order  must  specify  the  names  of  the 


§§  1719-1721  ORDERS,    DECREES,    ETC.  668 

parties  so  far  as  known  for  whom  the  attornej^  is 
ajDpointed,  T\ho  is  thereby  authorized  to  repre- 
sent such  parties  in  all  such  proceedings  had  sub- 
sequent to  his  appointment.  The  attorney  may 
receive  a  fee,  to  be  fixed  by  the  court,  for  his  ser- 
vices, which  must  be  paid  out  of  the  funds  of  the 
estate  as  necessary  expenses  of  administration, 
and  upon  distribution  may  be  charged  to  the  par- 
ty represented  by  the  attorney.  If,  for  any  cause, 
it  becomes  necessary,  the  court  may  substitute 
another  attorney  for  the  one  first  appointed,  in 
which  case  the  fee  must  be  proportionately  divid- 
ed. The  non-appointment  of  an  attorney  will  not 
affect  the  validity  of  any  of  the  proceedings. 
[Amendment  approved  April  16.  1880;  Amend- 
ments 1880,  p.  106.     In  effect  July  16,  1880.] 

§  1719.  When  a  judgment  or  decree  is  made, 
setting  apart  a  homestead,  confirming  a  sale, 
making  distribution  of  real  property,  or  determin- 
ing any  other  matter  affecting  the  title  to  real 
property,  a  certified  copy  of  the  same  must  be  re- 
corded in  the  office  of  the  recorder  of  the  county 
in  which  the  property  is  situated.  [Amendment 
approved  March  24,  1874:  Amendments  1873-4,  p. 
375.     In  effect  July  1,  1874.] 

§  1720.  When  it  is  not  otherwise  prescribed  in 
this  title,  the  superior  court,  or  the  supreme 
court  on  appeal,  may,  in  its  discretion,  order  costs 
to  be  paid  by  any  party  to  the  proceedings,  or  out 
of  the  assets  of  tlie  estate,  as  justice  may  require. 
Execution  for  the  costs  may  issue  out  of  the  su- 
perior court.  [Amendment  approved  April  16. 
1880;  Amendments  1880,  p.  106.  In  effect  July  16, 
1880.] 

Costs  against  executor— or  administrator:  Sec. 
1509. 

§  1721.  Whenever  an  executor,  administrator, 
or  guardian  is  committed  for  contempt  in  disobey- 


669  ORDERS,   DECREES,   ETC.  §§  1722,  1723 

ing  any  lawful  order  of  the  court,  or  a  judge 
thereof,  and  has  remained  in  custody  for  thirty 
days  without  obeying  such  order,  or  purging  him- 
self otherwise  of  the  contempt,  the  court  may,  by 
order  reciting  the  facts,  and  without  further  show- 
ing or  notice,  revoke  his  letters  and  appoint  some 
other  person  entitled  thereto  executor,  administra- 
tor, or  guardian  in  his  stead.  [Amendment  ap- 
proved April  10,  1880;  Amendments  1880,  p.  106. 
In   effect   .July   1(3,   1880.] 

S  1722.  Whenever  an  infant,  insane,  or  incom- 
petent person  has  a  guardian  of  his  estate  resid- 
ing in  this  State,  personal  service  upon  the  guar- 
dian of  any  process,  notice,  or  order  of  the  court 
concerning  the  estate  of  a  deceased  person  in 
which  the  ward  is  interested,  is  equivalent  to  ser- 
vice upon  the  ward,  and  it  is  the  duty  of  the 
guardian  to  attend  to  the  interests  of  the  ward  in 
the  matter.  Such  guardian  may  also  appear  for 
his  ward  and  waive  any  process,  notice,  or  order 
to  show  cause  which  an  adult  or  a  person  of 
sound  mind  might  do.  [Amendment  approved 
April  1(),  1880;  Amendments  1880,  p.  107.  In  ef- 
fect July  16,  1880.] 

§   1723.     If  any  person  has  died  or  shall  here- 
after die  who  at  the  time  of  his  death  was    the 
owner  of  a  life  estate  which  terminates  by  reason 
of  the  (loath  of  such  person,  or  if  such  person  at 
„..^\e  time  of  his  death  Avas  one  of  the  spouses  own- 
^   ing  and  occupying  lands  as  a  homestead,   which 
^  lands  by  reason  of  the  death  of  such  person,  vests 
'^  in  the  surviving  spouse;  or  if  such  person  was  a 
^  married  woman  wlio  at  time    of    her    death  was 
V  the  owner  of  community  property  which  passed 
S    upon    her   death   to   the   surviving   husband:    any 
\   ])erson  interested  in  the  proi)erty,   or  in  the  title 
3    thereto,   in  which  such  estates  or  interests  were 
held,  may  file  in  the  superior  court  of  the  coun- 
ty in  which  the  property  is  situated,  his  verified 


§  1723  ORDERS,   DECREES,   ETC.  670 

petition  setting  forth  such  facts,  and  thereupon 
and  after  such  notice  by  publication  or  otherwise, 
as  the  court  may  order,  the  court  shall  hear  such 
petition  and  the  evidence  offered  in  support  there- 
of, and  if  upon  such  hearing  it  shall  appear  that 
such  life  estate  of  such  deceased  person  absolute- 
ly terminated  by  reason  of  his  death,  or  such 
homestead  or  community  property  vested  in  the 
survivor  of  such  marriage,  the  court  shall  make  a 
decree  to  that  effect,  and  thereupon  a  certified 
copy  of  such  decree  may  be  recorded  in  the  oflSce 
of  the  County  Recorder,  and  thereafter  shall  have 
the  same  effect  as  a  final  decree  of  distribution  so 
recorded.  [Approved  March  4,  1897;  Stats.  1897, 
ch.  71.     In  effect  immediately.] 


G71  PUBLIC    ADMINISTRATOR.  §  1726 

CHAPTER  XIII. 

OF    PUBLIC    ADMINISTRATOR. 

§  1726.  What  estate  to  be  administered  by  public  admin- 
istrator. 

§  1727.  Public  administrator  to  obtain  letters,  when  and 
how.    His  bond  and  oath. 

§  1728.     Duty  of  persons  in  whose  house  any  stranger  dies. 

§  1729.  Must  return  inventory  and  administer  estates  ac- 
cording to  this  title. 

§  1730.  "When  another  person  is  appointed  administrator  or 
executor,  public  administrator  to  deliver  up  the 
estate. 

§  1731.  Civil  oflBcers  to  give  notice  of  waste  to  public  ad- 
ministrator. 

§  1732.    Suits  for  property  of  decedents. 

§  1733.  Order  to  examine  party  charged  with  embezzling 
estate. 

§  1734.    Punishment  for  refusing  to  attend. 

§  1735.     Order  on  public  administrator  to  account. 

§  1736.  Every  six  months  to  make  and  publish  return  of 
condition  of  estate. 

§  1737.  When  there  are  no  heirs  or  claimants,  moneys  and 
effects  paid  to  county  treasurer,   etc. 

§  1738.  Not  to  be  interested  in  the  payments  for  or  on  ac- 
count of  estates  in  his  hands. 

§  1739.  When  to  settle  with  county  clerk,  and  how  un- 
claimed estate  disposed  of. 

§  1740.  Proceedings,  how  and  by  whom  instituted,  against 
public  administrator  failing  to  pay  over  money 
as   ordered. 

i  1741.    Fees  of  officers,   when  and  by  whom  paid. 

§  1742.    Public  administrator  to  administer  oaths. 

§  1743.  Preceding  chapters  applicable  to  public  adminis- 
trator. 

§  1744.    Misdemeanor,   when  guilty  of. 

§  1726.  Every  public  administrator,  duly 
elected,  commissioned,  and  qualified,  must  take 
charge  of  tbe  estates  of  persons  dying  within  his 
county  as  follows: 

1.  Of  the  estate  of  decedents  for  which  no  ad- 
ministrators are  appointed,  and  which,  in  conse- 
quence thereof,  are  being  wasted,  uncared  for,  or 
lost: 


§  1727  PUBLIC    ADMINISTRATOR.  672 

'1.  Of  the  estates  of  decedents  who  have  uo 
knowii  heirs; 

'6.  Of  the  estates  ordered  iuto  his  hands  by  the 
court;  and 

4.  Of  the  estates  upon  which  letters  of  admin- 
istration have  been  issued  to  him  by  the  court. 
L Amendment,  approved  April  Iti,  1880;  Amend- 
ments 188U,  p.  107;  Amendments  1880,  p.  300.  In 
effect  July  10,  1880.] 

Public  administrator. — By  act  approved  March 
30,  1872,  Stats.  1871-2,  Avhich  toolj:  effect  imme- 
diately, if  the  public  administrator  of  any  coun- 
ty of  this  state  fails  to  qualify,  or  in  person  fails 
to  perform  the  duties  of  his  office,  the  coroner  of 
such  county  shall  be  ex  officio  public  administra- 
tor; and  in  case  both  public  administrator  and  cor- 
oner fail  to  qualify,  or  perform  the  duties  apper- 
taining thereto,  the  supervisors  shall  appoint  a 
suitable  person  to  be  public  administrator;  and 
all  laws  applicable  to  the  qualification,  powers, 
duties,  and  compensation  of  public  administrator 
shall  apply  to  the  coroner  or  appointee  of  the  su- 
pervisors as  aforesaid. 

Fees:  Sec.  1618. 

§  1727.  Whenever  a  public  administrator 
takes  charge  of  an  estate,  which  he  is  entitled 
to  administer  without  letters  of  administration 
being  issued,  or  under  order  of  the  court,  he  must, 
with  all  convenient  dispatch,  procure  letters  of 
administration  thereon,  in  like  manner  and  on 
like  proceedings  as  letters  of  administration  are 
issued  to  other  persons.  His  official  bond  and 
oath  are  in  lieu  of  the  administrator's  bond  and 
oath,  but  when  real  estate  is  ordered  to  be  sold, 
another  bond  may  be  required  by  the  court. 

Delivering   estate   to   another    appointee,     sees. 
17^,0.  173.5. 
Bond  on  sale  of  real  estate:  Sec.  1389, 


673  PUBLIC    ADMINISTRATOR.  §§  1728-1732 

§  1728.  Wheuever  a  strauger,  or  person  with- 
out known  heirs,  dies  intestate  in  the  house  or 
premises  of  another,  the  possessor  of  such  premises, 
or  anyone  Ivuowiug-  the  facts,  must  give  immediate 
notice  thereof  to  the  public  administrator  of  the 
county;  and  in  default  of  so  doing,  he  is  liable  for 
any  damage  that  may  be  sustained  thereby,  to  be 
recovered  by  the  public  administrator,  or  any  par- 
ty interested. 

§  1729.  The  public  administrator  must  make 
and  return  a  perfect  inventory  of  all  estates  tak- 
en into  his  possession,  administer  and  account  for 
the  same  according  to  the  provisions  of  this  title, 
subject  to  the  control  and  directions  of  the  court. 
[Amendment,  approved  April  1880;  Amendments 
1880,  p.  107.     In  effect  July  16,  1880.] 

§  1730.  If,  at  any  time,  letters  testamentary  or 
of  administration  are  regularly  granted  to  any 
other  person  on  an  estate  of  which  the  public  ad- 
ministrator has  charge,  he  must,  under  the  order 
of  the  court,  account  for,  pay,  and  deliver  to  the 
executor  or  administrator  thus  appointed,  all  the 
money,  property,  papers,  and  estate  of  every 
kind  in  his  possession  or  under  his  control. 
[Amendment,  approved  April  16,  1880;  Amend- 
ments 1880,  p.  107.    In  effect  July  16,  1880.] 

§  1731.  All  civil  officers  must  inform  the  pub- 
lic administrator  of  all  property  known  to  them, 
belongins:  to  a  decedent,  which  is  liable  to  loss, 
injury,  or  waste,  and  which,  by  reason  thereof, 
ought  to  be  in  possession  of  the  public  adminis- 
trator. 

§  1732.  The  public  admftiistrator  must  insti- 
tute all  suits  and  prosecutions  necessary  to  re- 
cover the  property,  debts,  papers,  or  other  estate 
of  the  decedent. 

Code  Civ.  Proc.  57. 


§§  1733-1736  PUBLIC   ADMINISTRATOR.  674 

§  1733.  When  the  public  administrator  com- 
plains to  the  superior  court,  or  a  judge  thereof, 
on  oath,  that  any  person  has  concealed,  embez- 
zled, or  disposed  of,  or  has  in  his  possession  any 
money,  goods,  property,  or  effects,  to  the  posses- 
sion of  which  such  administrator  is  entitled  in  his 
official  capacity,  the  court  or  judge  may  cite  such 
person  to  appear  before  the  court,  and  may  exam- 
ine him,  on  oath,  touching  the  matter  of  such 
complaint.  [Amendment,  approved  April  16,  1880; 
Amendments  1880,  p.  107.    In  effect  July  16,  1880.] 

Citation:  Sees.  1707-1711. 

§  1734.  All  such  interrogatories  and  answers 
must  be  reduced  to  writing  and  signed  by  the  par- 
ty examined,  and  filed  in  the  court.  If  the  per- 
son so  cited  refuses  to  appear  and  submit  to  such 
examination,  or  to  answer  such  interrogatories  as 
may  be  put  to  him  touching  the  matter  of  such 
complaint,  the  court  may  commit  him  to  the  coun- 
ty jail,  there  to  remain,  in  close  custody,  until  he 
submits  to  the  order  of  the  court.  [Amendment, 
approved  April  16,  1880:  Amendments  1880.  p.  107. 
In  effect  July  16,  1880.] 

Contempt:  Sees.  1209,  1219. 

§  1735.  The  court  may,  at  any  time,  order  the 
public  administrator  to  account  for  and  deliver  all 
the  money  and  property  of  an  estate  in  his  hands 
to  the  heirs,  or  to  the  executors  or  administrators 
regularly  appointed.  [Amendment,  approved 
April  lb\  1880;  Amendments  1880,  p.  108.  In  ef- 
fect July  16,  1880.] 

§  1736.  The  public  administrator,  or  any  per- 
son who  received  letters  of  administration  while 
acting  as  public  administrator,  must,  once  in  ev- 
ery six  months,  make  to  the  superior  court,  under 
oath,  a  return  of  all  the  estates  of  decedents 
which  have  come  into  his  hands,  the  value  of  each 


G75  PUBLIC    ADMINISTRATOR.  §  1737 

estate,  the  money  which  has  come  into  his  hands 
from  eveiT  such  estate,  and  what  he  has  done 
with  it,  and  the  amount  of  his  fees,  and  expenses 
incurred  in  each  estate,  and  the  balance,  if  any, 
in  each  such  case  remaining  in  his  hands;  publish 
the  same  six  times  in  some  newspaper  published 
in  the  county,  or  if  there  is  none,  then  post  the 
same,  legibly  written  or  printed,  in  the  office  of 
the  county  clerk  of  the  county.  One  copy  of  the 
return  must  be  filed  with  papers  in  each  estate  so 
reported.  [Amendment,  approved  March  26, 
1895;  Stats.  1895,  p.  157.  In  effect  March  26, 
1895.] 

§  1737.  It  is  the  duty  of  evevy  public  admin- 
istrator, as  soon  as  he  shall  receive  the  same,  to 
deposit  with  the  county  treasurer  of  the  county  in 
which  the  probate  proceedings  are  pending,  all 
moneys  of  the  estate  not  required  for  the  current 
expenses  of  the  administration;  and  such  moneys 
may  be  drawn  upon  the  order  of  the  executor  or 
administrator,  countersigned  by  a  superior  judge, 
when  required  for  the  purposes  of  administration. 
It  shall  be  the  duty  of  the  county  treasurer  to  re- 
ceive and  safely  keep  all  such  moneys,  and  pay 
them  out  upon  the  order  of  the  executor  or  admin- 
istrator, when  countersigned  by  a  superior  judge, 
and  not  otherwise,  and  to  keep  an  account  with 
such  estate  of  all  moneys  received  and  paid  to 
him;  and  the  county  treasurer  shall  be  allowed 
one  per  cent  upon  all  moneys  received  and  kept 
by  him,  and  no  greater  fees  for  any  services  herein 
provided;  and  for  the  safe  keeping  and  payment 
of  all  such  moneys,  as  herein  provided,  the  said 
treasurer  and  his  sureties  shall  be  responsible  up- 
on his  official  bond.  The  moneys  thus  deposited 
may,  upon  order  of  the  court,  be  invested,  pend- 
ing the  proceedings,  in  securities  of  the  United 
States,  or  of  this  State,  when  such  investment  is 
deemed  by  the  court  to  be  for  the  best  interests 
of  the  estate.     After  a  final  settlement  of  the  af- 


§§  1738-1740  PUBLIC   ADMINISTRATOR.  676 

fairs  of  any  estate,  if  there  be  no  heirs,  or  other 
claimants  thereof,  the  county  treasurer  shall  pay 
into  the  State  treasury  all  moneys  and  effects  in 
his  hands  belonging  to  the  estate,  upon  order  of 
the  court;  and  if  any  such  moneys  and  effects  es- 
cheat to  the  State,  they  must  be  disposed  of  as 
other  escheated  estates.  [Amendment,  approved 
April  16,  1880:  Amendments  1880,  p.  108.  In  ef- 
fect July  16,  1880.] 
Escheated  estates.  Sees.  1269-1272. 

§  1738.  The  public  administrator  must  not  be 
interested  in  the  expenditures  of  any  kind  made 
on  account  of  any  estate  he  administers,  nor  must 
he  be  associated  in  business  or  otherwise  with 
anyone  who  is  so  interested,  and  he  must  attach  to 
his  report  and  publication,  made  in  accordance 
with  the  preceding  section,  his  affidavit  to  that 
effect. 

§  1739.  Public  administrators  are  required  to 
account,  under  oath,  and  to  settle  and  adjust  their 
accounts  relating  to  the  care  and  disbursement  of 
money  or  property  belonging  to  estates  in  their 
hands,  with  the  county  clerks  of  their  respective 
counties,  on  the  first  Monday  in  .January  and  July 
in  each  year;  one  copy  of  said  account  to  be  filed 
with  the  papers  in  each  of  such  estates;  and  they 
must  pay  to  the  county  treasurer  any  money  re- 
maining in  their  hands  of  an  estate  unclaimed, 
as  provided  in  sections  sixteen  hundred  and  nine- 
ty-three to  sixteen  hundred  and  ninety-six,  both 
inclusive.  [Amendment,  approved  INlarch  26, 
1895;  Stats.  1895,  p.  124.  In  effect  March  26, 
1895.] 

§  1740.  When  it  appears,  from  the  returns 
made  in  pursuance  of  the  foregoing  sections,  that 
any  money  remains  in  the  hands  of  the  public  ad- 
ministrator (after  a  final  settlement  of  the  estate) 
unclaimed,  whieli  should  be  paid  over  to  the  coun- 


G77  PUBLIC   ADMINISTRATOR.  §§  1741-1744 

ty  treasurer,  the  superior  court,  or  a  judge  there- 
of, must  order  the  same  to  be  paid  over  to  the 
couuty  treasurer;  and  ou  failure  of  the  public  ad- 
ministrator to  comply  with  the  order  within  ten 
days  after  the  same  is  made,  the  district  attorney 
for  the  county  must  immediately  institute  the  re- 
quisite legal  proceedings  against  the  public  ad- 
ministrator for  a  judgment  against  him  and  the 
sureties  on  his  official  bond,  in  the  amount  of 
money  so  withheld,  and  costs.  [Amendment,  ap- 
proved April  IG,  1880;  Amendments  1880,  p.  108. 
In  effect  July  16,  1880.] 

§  1741.  The  fees  of  all  officers  chargeable  to 
estates  in  the  hands  of  public  administrators, 
must  be  paid  out  of  the  assets  thereof  so  soon  as 
the  same  come  into  his  hands. 

§  1742.  Public  administrators  may  administer 
oaths  in  regard  to  all  matters  touching  the  dis- 
charge of  their  duties,  or  the  administration  of  es- 
tates in  their  hands. 

Administration  of  oaths:  Sec.  2093  et  seq. 

§  1743.  When  no  direction  is  given  in  this 
chapter  for  the  government  or  guidance  of  a  pub- 
lic administrator  in  the  discharge  of  his  duties,  or 
for  the  administration  of  an  estate  in  his  hands, 
the  provisions  of  the  preceding  chapters  of  this 
title  must  govern. 

§  1744.  Every  public  administrator,  or  person 
who  holds  letters  of  administration,  who  was  ap- 
pointed while  acting  as  public  administrator,  who 
fails  to  comply  with  the  provisions  of  sections 
seventeen  hundred  and  thirty-five,  seventeen  hun- 
dred and  thirty-six,  and  section  seventeen  hundred 
and  thirty-nine  of  this  Code,  is  guilty  of  a  misde- 
meanor; and  upon  conviction  thereof,  shall  be  pun- 
ished by  a  fine  not  less  than  one  hundred  dollars  for 
eacli  offense:  and  it  sliall  he  the  dutA'  of  the  dis- 


§  1747  GUARDIAN    AND    WARD.  678 

trict  attorney  of  the  county  to  see  that  the  pro- 
visions of  this  ehaptei"  are  fully  complied  with. 
[New  section  approved  March  9,  1895;  Stats.  1895, 
p.  38.     In  effect  March  9,  1895.] 


CHAPTER  XIV. 

OF  GUARDIAN  AND  WARD. 

Article  I.  Guardians  of  Minors. 

II.  Guardians  of  Insane  and   Incompetent  Persons. 

III.  Thie  Powers  and  Duties  of  Guardians. 

IV.  The  Sale  of  Property  and  Disposition  of  Proceeds. 
V.  Nonresident  Guardians  and  Wards. 

VI.     General  and  Miscellaneous  Provisions. 

ARTICLE  I. 

GUARDIANS  OF  MINORS. 

§  1747.  Judge  to  appoint  guardians,  when  and  on  what  pe- 
tition. 

§  1748.    When  minor  may  nominate  guardian;  when  not. 

§  1749.  When  appointment  may  be  made  by  judge,  when 
minor  is  over  fourteen. 

§  1750.    Nomination  by  minors  after  arriving  at  fourteen. 

§  1751.     Father   or   mother   entitled   to   guardianship. 

§  1752.     Minor  having  no  father  or  mother. 

§  1753.     Powers  and  duties  of  guardian. 

§  1754,     Bond  of  guardian,    conditions  of. 

§  1755.  Probate  judge  may  insert  conditions  in  order  ap- 
pointing guardian. 

§  1756.  Letters  of  guardianship  and  bond  of  guardian  to  be 
recorded. 

§  1757.  Maintenance  of  minor  out  of  income  of  his  own 
property. 

§  1758.    Guardian  to  give  bond.    Powers  limited. 

§  1759.  Power  of  courts  to  appoint  guardians  and  next 
friend  not  impaired. 

§  1747.  The  superior  court  of  each  county, 
when  it  appears  necessary  or  convenient,  may  ap- 
point jruardians  for  the  persons  and  estates,  or 
either  of  them,  of  minors  who  have  no  .(guardian 
legally  appointed   by  will  or  deed,   and  who  are 


679  GUARDIAN    AND    WARD.  §  1747 

inhabitants  or  residents  of  the  county,  or  who  re- 
side without  the  State  and  have  estate  within  the 
county.  Such  appointment  may  be  made  on  the 
petition  of  a  relative  or  other  person  on  behalf  of 
the  minor,  or  on  the  petition  of  the  minor,  if  four- 
teen years  of  age.  Before  mailing  such  appoint- 
ment, the  court  must  cause  such  notice  as  such 
court  deems  reasonable  to  be  given  to  any  person 
having  the  care  of  such  minor,  and  to  such  rela- 
tives of  the  minor  residing  in  the  county  as  the 
court  may  deem  proper.  [Amendment,  approved 
April  15,  1880:  Amendments  1880,  p.  65.  In  ef- 
fect April  15,  1880.] 

Powers  and  duties  of  guardians:  Sec.  1768  et 
seq. 

Guardian  and  ward:  See  Civil  Code,  sees.  236- 
258. 

Guardian  ad  litem:  See  sec.  1759. 

Minors. — Minors  are:  1.  Males  under  twenty-one 
years  of  age;  2.  Females  under  eighteen  years  of 
age:  Civil  Code,  sec.  25.  The  periods  specified  in 
the  preceding  section  must  be  calculated  from  the 
first  minute  of  the  day  on  which  persons  are 
born  to  the  same  minute  of  the  corresponding  day 
completing  the  period  of  minority:  Id.,  sec.  26. 
The  abuse  of  parental  authority  is  the  subject  of 
judicial  cognizance  in  a  civil  action  brought  by 
the  child,  or  by  its  relative  within  the  third  de- 
gree, or  by  the  supervisors  of  the  county  where 
the  child  resides;  and  when  the  abuse  is  estab- 
lished, the  child  may  be  freed  from  the  domin- 
ion of  the  parent,  and  the  duty  of  support  and  ed- 
ucation enforced:  Id.,  sec.  203.  The  authority  of 
a  parent  ceases:  1,  Upon  the  appointment,  by  a 
court,  of  a  guardian  of  the  person  of  a  child;  2. 
Upon  the  marriage  of  the  cliild;  or  3.  Upon  its  at- 
taining majority:  Id.,  sec.  204. 

Infant  party  to  action,  etc.,  guardian:  Sec.  372, 
373,  1722,  1769. 

Seal  necessary  to  appointment  of  guardian:  Sec. 
152,  subd.  2. 


S§  1748-1751  GUARDIAN    AND    WARD  680 

§  1748.  If  the  minor  is  under  the  age  of  four- 
teen years,  the  court  may  nominate  and  appoint  his 
guardian.  If  he  is  fourteen  years  of  age,  he  may 
nominate  his  own  guardian,  who,  if  approved  by 
the  court,  must  be  appointed  accordingly. 
[Amendment,  approved  April  15,  1880;  Amend- 
ments 1880,  p.  65.     In  effect  April  15,  1880.] 

§  1749.  If  the  guardian  nominated  by  the  min- 
or is  not  approved  by  the  court,  or  if  the  minor 
resides  out  of  the  State,  or  if,  after  being  duly 
cited  by  the  court,  he  neglects  for  ten  days  to 
nominate  a  suitable  person,  the  court  or  judge 
may  nominate  and  appoint  the  guardian  in  the 
same  manner  as  if  the  minor  were  under  the  age 
of  fourteen  years.  [Amendment,  approved  April 
15,  1880;  Amendments  1880,  p.  65.  In  effect  April 
15,   1880.] 

§  1750.  When  a  guardian  has  been  appointed 
by  the  court  for  a  minor  under  the  age  of  fourteen 
years,  the  minor,  at  any  time  after  he  attains  that 
age,  may  appoint  his  own  guardian,  subject  to  the 
approval  of  the  court.  [Amendment,  approved 
April  15,  1880;  Amendments  1880,  p.  65.  In  effect 
April  15,  1880.] 

§  1751.  The  father  or  the  mother  of  a  minor 
child  under  the  age  of  fourteen  years,  if  found 
by  the  court  competent  to  discharge  the  duties 
of  guardianship,  is  entitled '  to  be  appointed  a 
guardian  of  such  minor  child,  in  preference 
to  any  other  person.  Tlie  person  nominated  by 
a  minor  of  the  age  of  fourteen  years  as  his 
guardian,  whether  married  or  unmarried,  may, 
if  found  by  the  court  competent  to  discharge  tlie 
duties  of  guardianship,  bo  appointed  as  such  guard- 
ian. The  authority  of  a  guardian  is  not  extin- 
guished nor  affected  by  the  marriage  of  the  guard- 
ian.   [Amendment  approved  March  19,  1891;  Stats. 


681  GUARDIAN    AND    WARD.  §§  1752-1754 

Parent.— The  parent,  as  sneh,  has  no  control  ov- 
er the  property  of  the  child:  Civ.  Code,  sec.  202. 

Bond,  testamentary  guardian  must  give:  Sec. 
1758. 

Residence.— A  parent  entitled  to  the  custody  of  a 
child  has  a  right  to  change  his  residence,  subject 
to  the  poAver  of  the  proper  conrt  to  restrain  a  re- 
moval which  Avould  prejudice  the  rights  or  wel- 
fare of  the  child:  Civ.  Code,  sec.  213. 

s^    §  1752.    If  the  minor  has  no  father  or  mother 
>:-  living,  competent  to  have  the  custody  and  care  of 
;;;  his  education,  the  guardian  appointed  shall  have 
>^the  same. 

^  §  1753.  Every  guardian  appointed  shall  have 
the  custody  and  care  of  the  education  of  the  mi- 
nor, and  the  care  and  management  of  his  estate, 

•>^' until  such  minor  arrives  at  the  age  of  majority  or 

;;;•  marries,  or  until  the  guardian  is  legally  discharg- 

^    ed. 

§  1754,  Before  the  order  appointing  any  person 
guardian  under  this  chapter  takes  effect,  and  be- 
fore letters  issue,  the  court  must  require  of  such 
person  a  bond  to  the  minor  with  sufficient  sureties, 
to  be  approved  by  the  judge,  and  in  such  sum  as 
he  shall  order,  conditioned  that  the  guardian  will 
faithfully  execute  the  duties  of  his  trust  accord- 
ing to  law,  and  the  following  conditions  shall  form 
a  part  of  such  bond  without  being  expressed  there- 
in: 

1.  To  make  an  inventory  of  all  the  estate,  real 
and  personal,  of  his  ward,  that  comes  to  his  pos- 
session or  knowledge,  and  to  return  the  same  with- 
in such  time  as  the  court  may  order: 

2.  To  dispose  of  and  manage  the  estate  accord- 
ing to  law  and  for  the  best  interest  of  the  ward, 
and  faithfully  to  discharge  liis  trust  in  relation 
thereto,  and  also  in  relation  to  the  care,  custody, 
and  education  of  the  ward; 


§§  1755,   1756  GUARDIAN   AND   WARD.  682 

3.  To  render  an  account  on  oath  of  the  propert3% 
estate,  and  moneys  of  the  ward  in  his  hands,  and 
all  proceeds  or  interests  derived  therefrom,  and  of 
the  management  and  disposition  of  the  same,  with- 
in three  months  after  his  appointment,  and  at  such 
other  times  as  tlie  conrt  directs,  and  at  the  expira- 
tion of  his  trust  to  settle  his  accounts  with  the 
court,  or  with  the  ward,  if  he  be  of  full  age,  or 
his  legal  representatives,  and  to  pay  over  and  de- 
liver all  the  estate,  moneys,  and  effects  remaining 
in  his  hands,  or  due  from  him  on  such  settlement, 
to  the  person  who  is  lawfully  entitled  thereto.  Up- 
on filing  the  bond,  duly  approved,  letters  of  guard- 
ianship must  issue  to  the  person  appointed.  In 
form  the  letters  of  guardianship  must  be  substan- 
tially the  same  as  letters  of  administration,  and 
the  oath  of  the  guardian  must  be  indorsed  thereon 
that  he  will  perform  the  duties  of  his  office  as  such 
guardian  according  to  law.  [Amendment,  ap- 
proved April  15,  1880;  Amendments  1880,  p.  65. 
In  effect  April  15,  1880.] 
Accounts    of    guardians— rendering:    Sees.    1773, 


K       1774. 


N 


a 


§  1755.     When  any  person  is  appointed    guard- 
ian of  a  minor,  the  court  may,  with  the  consent  of 
such  person,  insert  in  the  order  of  appointment, 
>*    conditions  not  otherwise  obligatory,  providing  for 
^^-the  care,  treatment,  education,  and  welfare  of  the 
vj    minor.    The  performance  of  such  conditions  shall 
•^  be  a  part  of  the  duties  of  the  guardian,  for  the 
^  faithful  performance  of  which  he  and  the  sureties 
§\.  on  his  bond  shall  be    responsible.      [Amendment 
In     approved  April  15,  1880:  Amendments  1880,  p.  66. 
g     In  effect  April  15,  1880.] 

Guardian's  bond— liability  on:  Sec.  1407. 
Letters    of    guardiansliip— special,     issuable     at 
chambers:  Sec.  100. 


i! 


§   1756.    All  letters  of  guardianship  issued,  and 
all  guardians'  bonds  executed  under    the    provis- 


683  GUARDIAN    AND    WARD.  §§  1757-1759 

ions  of  this  chapter,  with  the  affidavits  aud  certifi- 
cates thereon,  must  be  recorded  by  the  clerlv  of 
the  court  having  jurisdiction  of  the  persons  and 
estates  of  the  wards.  [Amendment  approved 
April  15,  1880;  Amendments  1880,  p.  60.  In  effect 
April  15,  1880.] 

§  1757.  If  any  minor  having  a  father  living  has 
property,  the  income  of  which  is  sufficient  for  his 
maintenance  and  education  in  a  manner  more  ex- 
pensive than  his  father  can  reasonably  afford,  re- 
gard being  had  to  the  situation  of  the  father's 
family  and  to  all  the  circumstances  of  the  case, 
the  expenses  of  the  education  and  maintenance  of 
such  minor  may  be  defrayed  out  of  the  income  of 
his  own  propert3^  in  whole  or  in  part,  as  judged 
reasonable,  and  must  be  directed  by  the  court;  and 
the  charges  therefor  may  be  allowed  accordingly 
in  the  settlement  of  the  accounts  of  his  guardian. 
[Amendment  approved  April  15,  1880;  Amend- 
ments 1880,  p.  66.    In  effect  April  15,  1880.] 

§  1758.  Every  testamentary  guardian  must 
give  bond  and  qualify,  and  has  the  same  powers 
^.  and  must  perform  the  same  duties  with  regard  to 
-the  person  and  estate  of  his  ward  as  guardians  ap- 
^  pointed  by  the  court,  except  so  far  as  their  powers 
Xand  duties  are  legally  modified,  enlarged,  or 
v>ehanged  by  the  will  by  Avhich  such  guardian  was 
'^ippointed.  [Amendment  approved  April  15,  1880: 
;;>Amendments  1880,  p.  67.  In  effect  April  15,  1880.] 
'O    Testamentary  guardian— bond  of:  See  sec.  1754. 

§  1759.  Nothing  contained  in  this  chapter  af- 
fects or  impairs  the  power  of  any  court  to  appoint 
a  guardian  to  defend  the  interests  of  any  minor  in- 
terested in  any  suit  or  matter  pendiug  therein. 

rjuardian  ad  litem:  Sees.  372,  373,  1722.  1769. 


§  1763  GUARDIAN    AND    WARD.  684 


ARTICLE    II. 

GUARDIANS    OF     INSANE    AND     INCOMPETENT     PER- 
SONS. 

§  1763.  Guardians  of  insane  and  other  incompetent  persons. 

§  1764.  Appointment   by   probate    judge   after   hearing. 

§  1765.  Powers   and   duties   of   such   guardians. 

§  1766.  Petition   for    restoration   to   capacity. 

§  1767.  Definition    of    incompetent. 

§  1763.  When  it  is  represented  to  the  superior 
court,  or  a  judge  thereof,  upon  verified  petition  of 
any  relative  or  friend,  that  any  person  is  insane, 
or  from  any  cause  mentally  incompetent  to  man- 
age his  property,  such  court  or  judge  must  cause 
a  notice  to  be  given  to  the  supposed  insane  or  in- 
competent person  of  the  time  and  place  of  hear- 
ing the  case,  not  less  than  five  days  before  the 
time  so  appointed;  and  such  person,  if  able  to  at- 
tend, must  be  produced  on  the  hearing.  [Amend- 
ment approved  April  15,  1880;  Amendments  1880, 
p.  67.     In  effect  April  15,  1880.] 

Insane  person:  Homestead  of,  see  Stats.  1874,  p. 
582. 

Guardian  ad  litem— of  insane  or  incompetent 
person,  sees.  372,  373,  1722. 

Lunatic. — A  person  of  unsound  mind  may  be 
placed  in  an  asylum  for  such  persons,  upon  the  or- 
der of  the  superior  court  of  the  county  in  which 
he  resides,  as  follows:  1.  The  court  must  be  satis- 
fied, upon  examination  in  open  court  and  in  the 
presence  of  such  person,  from  the  testimony  of 
two  reputable  physicians,  that  such  person  is  of 
unsound  mind,  and  unfit  to  be  at  large;  2.  After 
the  order  is  granted,  the  person  alleged  to  be  of 
unsound  mind,  his  or  her  husband  or  wife,  or  rel- 
ative to  the  third  degree,  or  any  citizen,  may  <le- 
mand  an  investigation  before  a  jury,  which  must 
be  conducted  in  all  respects  as  under  an  inquisi- 
tion of  lunacy:  Civ.  Code,  sec.  258. 


685  GUARDIAN    AND    WARD.  §§  1764-1766 

Sale  of  bomesteatl  where  husband  or  wife  in- 
sane: Civ.  Code,  sec.  1242. 

§  1764.  If,  after  a  full  hearing  and  examina- 
tion upon  such  petition,  it  appear  to  the  court  that 
the  person  in  question  is  incapable  of  taking  care 
of  himself  and  managing  his  property,  such  court 
must  appoint  a  guardian  of  his  person  and  estate, 
with  the  powers  and  duties  in  this  chapter  speci- 
tied.  [Amendment  approved  April  15,  1880; 
Amendments  1880,  p.  07.    In  effect  April  15,  1880.] 

Jurisdiction  to  appoint  guardian:  Sec.  97,  subd. 
2;  at  chambers:  Sec.  IGG;  seal  necessary:  Sec.  152. 

§  1765.  Every  guardian  appointed,  as  provided 
in  the  preceding  section,  has  the  care  and  custody 
of  the  person  of  his  ward,  and  the  management  of 
all  his  estate,  until  such  guardian  is  legally  dis- 
charged; and  he  must  give  bond  to  such  ward,  in 
lilvc  manner  and  with  lilve  conditions  as  before 
prescribed  with  respect  to  the  guardian  of  a  mi- 
nor. 

Bond  of  guardian:  Sec.  1754. 

§  1766.  Any  person  who  has  been  declared  in- 
sane or  incompetent,  or  the  guardian,  or  any  rela- 
tive of  such  person  within  the  third  degree,  or  any 
friend,  may  apply,  by  petition,  to  the  superior 
court  of  the  county  in  which  he  was  declared  in- 
sane, to  liave  tlie  fact  of  his  restoration  to  capacity 
judicially  determined.  The  petition  shall  be  veri- 
fied, and  sliall  state  that  sucli  person  is  tlien  sane 
or  competent.  Upon  receiving  the  petition,  the 
court  must  appoint  a  day  for  a  hearing  before  the 
court,  and,  if  the  petitioner  request  it,  shall  order 
an  investigation  before  a  jury,  which  shall  be 
summoned  and  impaneled  in  the  same  manner  as 
juries  are  summoned  and  impaneled  in  civil  ac- 
tions. The  court  shall  cause  notice  of  the  trial  to 
be  given  to  the  guardian  of  the  person  so  declared 
Code  Civ.   Proc— 58. 


§  1737  GUARDIAN    AND    WARD.  686 

insane  or  incompetent,  if  tliere  be  a  guardian,  and 
to  his  or  her  husband  or  wife,  if  there  be  one,  and 
to  his  or  lier  father  or  mother,  if  living  in  the  coun- 
ty. On  the  trial,  the  guardian  or  relative  of  the 
person  so  declared  insane  or  incompetent,  and,  in 
the  discretion  of  the  court,  any  other  person  may 
contest  the  right  to  the  relief  demanded.  Witness- 
es may  be  required  to  appear  and  testify,  as  in 
civil  cases,  and  may  be  called  and  examined  by 
the  court  on  its  own  motion.  If  it  be  found  that 
the  person  be  of  sound  mind,  and  capable  of  tak- 
ing care  of  himself  and  his  property,  his  restora- 
tion to  capacity  shall  be  adjudged,  and  the  guard- 
ian of  such  person,  if  such  person  be  not  a  minor, 
shall  cease.  [Amendment,  approved  April  15,  1880; 
Amendments  1880,  p.  67.    In  effect  April  15,  1880.] 

§  1767.  The  phrase  "incompetent,"  "mentally 
incompetent,"  and  "incapable,"  as  used  in  this 
chapter,  shall  be  construed  to  mean  any  person 
who,  though  not  insane,  is,  by  reason  of  old  age, 
disease,  weakness  of  mind,  or  from  any  other  cause, 
unable,  unassisted,  to  properly  manage  and  take 
care  of  himself  or  his  property,  and  by  reason 
thereof  would  be  likely  to  be  deceived  or  imposed 
upon  by  artful  or  designing  persons.  [New  sec- 
tion added  March  10,  1891;  Stats.  1891,  p.  68;  in  ef- 
fect immediately.] 


687  GUARDIAN    AND    WARD.  §§  1768,  1769 

ARTICLE  III. 

THE   POWERS  AND  DUTIES  OF  GUARDIANS. 

§  1768.     Guardian  to  pay  debts  of  ward  out  of  ward's  estate. 

§  1769.  Guardian  to  recover  debts  due  his  ward  and  repre- 
sent him. 

§  1770.  Guardian  to  manage  his  estate,  maintain  ward,  and 
sell  real  estate. 

5  1771.  Maintenance,  support,  and  education  of  ward,  how 
enforced. 

§  1772.    May  assent  to  a  partition   of  real   estate. 

§  1773,  Guardian  to  return  inventory  of  estate  of  ward.  Ap- 
praisers to  be  appointed.  Like  proceedings  when 
other  property  acquired. 

§  1774.    Settlements  of  guardians. 

§  1775.     Allowance  of  accounts  of  joint  guardians. 

§  1776.     Expenses  and  compensation  of  guardians. 

§  1768.    Every    guardian    appointed    under   the 

provisions  of  this  chapter,  whether  for  a  minor  or 

s^  any  other  person,  mnst  pay  all  jnst  debts  due  from 

\j    the  ward,  out  of  his  personal  estate,  and  the  in- 

^     come  of  his  real  estate,  if  sufficient;  if  not,  then 

^^     out  of  his  real  estate,  upon  obtaining"  an  order  for 

the  sale  thereof,  and  disposins:  of  the  same  in  the 

manner  provided  in  this  title  for  the  sale  of  real 

estate  of  decedents. 

)         Order  of  sale  of  property:  Sec.  1770. 

§  1769.  Every  guardian  must  settle  all  acounts 
of  the  ward,  and  demand,  sue  for,  and  receive  all 
debts  due  to  him,  or  may,  with  the  approbation  of 
the  court,  compound  for  the  same  and  give  dis- 
charges to  the  debtor,  on  receiving  a  fair  and  just 
dividend  of  his  estate  and  effects:  and  he  must 
appear  for  and  represent  his  ward  in  all  legal  suits 
and  proceedings,  unless  anotlier  person  be  appoint- 
ed for  that  purpose.  [Amendment,  approved 
April  15,  1880;  Amendments  1880,  p.  68.  In  effect 
Ai)ril  15,  1880.1 


§§  1770-1773  GUARDIAN    AND    WARD.  688 

§  1770.  Every  guardian  must  manage  the  es- 
tate of  bis  ward  frugally  and  without  waste,  and 
apply  the  income  and  profits  thereof,  as  far  as 
may  be  necessary,  for  the  comfortable  and  suit- 
able maintenance  and  support  of  the  ward  and  his 
family,  if  there  be  any;  and  if  such  income  and 
profits  be  insufficient  for  that  purpose,  the  guard- 
ian may  sell  the  real  estate,  upon  obtaining  an  or- 
der of  the  court  therefor,  as  provided,  and  must 
apply  the  proceeds  of  such  sale,  as  far  as  may  be 
necessary,  for  the  maintenance  and  support  of  the 
ward  and  his  family,  if  there  be  any. 

Sale  of  property — and  disposition  of  proceeds, 
sec.  1777  et  seq. 

§  1771.  When  a  guardian  has  advanced  for  the 
necessary  maintenance,  support,  or  education  of 
his  ward,  an  amount  not  disproportionate  to  the 
value  of  his  estate  or  his  condition  of  life,  and  the 
same  is  made  to  appear  to  the  satisfaction  of  the 
court,  by  proper  vouchers  and  proofs,  the  guardian 
must  be  allowed  credit  therefor  in  his  settlements. 
Whenever  a  guardian  fails,  neglects,  or  refuses  to 
furnish  suitable  or  necessary  maintenance,  sup- 
port, or  education  for  his  ward,  the  court  may  or- 
der him  to  do  so,  and  enforce  such  order  by  prop- 
er process.  Whenever  any  third  person,  at  his  re- 
quest, supplies  a  ward  with  such  suitable  and  ne- 
cessary maintenance,  support,  or  education,  and  it 
is  shown  to  have  been  done  after  refusal  or  neglect 
of  the  guardian  to  supply  the  same,  the  court  may 
direct  the  guardian  to  pay  therefor  out  of  the  es- 
tate, and  enforce  such  payment  by  due  process. 

§  1772.  The  guardian  may  join  in  and  assent 
to  a  partition  of  the  real  estate  of  the  ward,  wher- 
ever such  assent  may  be  given  by  any  person. 

Assent  to  partition:  Sec.  795. 

Appearance  by  guardian:  Sees.  372,  1722. 

§   1773.    Every    guardian    must    return    to    the 


689  GUARDIAN    AND    WARD.  §  1774 

court  au  iuveiitory  of  the  estate  of  his  ward  within 
three  mouths  after  his  appoiutmeut,  aud  annually 
thereafter.     When  the  value  of  the  estate  exceeds 
the  sum  of  one  hundred  thousand  dollars,  semi-an- 
nual returns  must  be  made  to  the  court.  The  corirt 
may,  upon  application  made  for  that  purpose  by 
any  person,  compel  the  jiuardian  to  render  an  ac- 
count to  the  court  of  the  estate  of  his  ward.    The 
inventories  and  accounts  so  to  be  returned  or  ren- 
dered must  be  sworn  to  by  the  guardian.    All  the 
estate  of  the  ward  described  in  the  first  inventory 
must  be  appraised  by  appraisers  appointed,  sworn, 
and  acting-  in  the  manner  provided  for  regulating 
the  settlement  of  the  estates  of  decedents.     Such 
inventory,  Avitli  the  appraisement  of  the  property 
^    therein  described,  must  be  recorded  by  the  clerk 
of  the  court  in  a  proper  book  kept  in  his  office  for 
y    that  purpose.     Whenever  any  other    property    of 
^     the  estate  of  any  ward  is  discovered,  not  included 
\     in  the  inventory  of  the  estate    already    returned, 
^     and  Avheuever  any  other  property  has  been  suc- 
^     ceeded  to,  or  acquired  by  any  ward,  or  for  his  ben- 
^     efit,  the  like  proceedings  must  be  had  for  the  re- 
J>     turn  and  appraisement  thereof  that  are  herein  pro- 
vided in  relation  to  the  first  inventory  and  return. 
[Amendment,  a]:>proved    April    15,    1880;    Amend- 
ments 1880,  p.  68.    In  effect  April  15,  1880.] 
Where  joint  guardians:  Sec.  1775. 
Appraisers— generally:  Sec.  1444. 
May  be  appointed  at  chambers:  Sec.  166. 

'  §  1774.  The  guardian  must,  upon  the  expiration 
\r  of  a  year  from  the  time  of  his  appointment,  and  as 
^  often  thereafter  as  he  may  be  required,  present  his 
^  account  to  the  court  for  settlement  and  allow- 
^'  ance.  [Amendment,  approved  April  15,  1880; 
s^  Amendments  1880,  p.  68.  In  effect  April  15,  1880.] 
jy       Accounts  of  guardian:  Sec.  1773. 


§§  1775,  1777  GUARDIAN    AND    WARD  690 

§  1775.  A^  iieu  nu  account  is  rendered  by  two 
or  more  joint  iiiiardians,  the  court  may,  in  its  dis- 
cretion, allow  the  same  upon  the  oath  of  any  of 
them.  [Amendment,  approved  April  15,  1880; 
Amendments  188U,  p.  68.    In  effect  April  15,  1880.] 

§  1776.  Every  guardian  must  be  allowed  the 
amount  of  his  reasonable  expenses  incurred  in  the 
execution  of  his  trust,  and  he  must  also  have  such 
compensation  for  his  services  as  the  court  in 
which  his  accounts  are  settled  deems  just  and  rea- 
sonable. 

Expenses  incurred— advances  made:  Sec.  1771. 


ARTICLE  lA^ 

THE   SALE   OF  PROPERTY  AND   DISPOSITION   OF   THE 
PROCEEDS. 

§  1777.     May  sell  property  in  certain  cases. 

§  1778.     Sale  of  real  estate  to  be  made  upon  order  of  court. 

§  1779.     Application  of  proceeds  of  sales. 

§  1780.     Investment   of  proceeds   of  sales. 

§  1781.     Order  for  sale,   how  obtained. 

§  1782.     Notice  to  next  of  kin,   how  given. 

§  1783.  Copy  of  order  to  be  served,  published,  or  consent 
filed. 

§  1784.     Hearing  of  application. 

§  1785.     Who  may  be  examined  on  such  hearing. 

§  1786.     Costs  to  be  awarded,  to  whom. 

§  1787.     Order  of  sale,  to  specify  what. 

§  1788.     Bond  before  selling. 

§  1789.  All  proceedings  for  sales  of  property  by  guardians 
to  conform  to  chapter  seven  of  this  title. 

§  1790.     Limit  of  order  of  sale. 

§  1791.  Conditions  of  sales  of  real  estate  of  minor  heirs. 
Bond  and  mortgage  to  be  given  for  deferred  pay- 
ments. 

§  1792.  Court  may  order  the  investment  of  money  of  the 
ward. 

§  1777.  When  the  income  of  an  estate  under 
guardianship  is  insufficient  to  maintain  the  ward 
and   liis  familv,   or  to   maintain  and  educate  the 


691  GUARDIAN    AND    WARD.  §§  1778-1781 

ward  when  a  minor,  his  guardian  may  sell  his  real 
or  personal  estate  for  that  purpose,  upon  obtaining 
an  order  therefor. 
Power  of  guardian— to  sell  property:  Sec.  1768. 

§  1778.  When  it  appears  to  the  satisfaction  of 
the  court,  upon  the  petition  of  the  guardian,  that 
for  the  benefit  of  his  ward  his  real  estate,  or  some 
part  thereof,  should  be  sold,  and  the  proceeds 
thereof  put  out  at  interest,  or  invested  in  some 
productive  stoclv,  or  in  the  improvement  or  secur- 
ity of  any  other  real  estate  of  the  ward,  his  guard- 
ian may  sell  the  same  for  such  purpose,  upon  ob- 
taining an  order  therefor. 

Order  for  sale  of  property:  Sec.  1768. 

§  1779.  If  the  estate  is  sold  for  the  purposes 
mentioned  in  this  article,  the  guardian  must  apply 
the  proceeds  of  the  sale  to  such  purposes,  as  far 
as  necessary,  and  put  out  the  residue,  if  any,  on 
interest,  or  invest  it  in  the  best  manner  in  his  pow- 
er, until  the  capital  is  wanted  for  the  maintenance 
of  the  ward  and  his  family,  or  the  education  of  his 
children,  or  for  the  education  of  the  ward  when  a 
minor,  in  which  case  the  capital  may  be  used  for 
that  purpose,  as  far  as  may  be  necessary,  in  like 
manner  as  if  it  had  been  personal  estate  of  the 
ward. 

§  1780.  If  the  estate  is  sold  for  the  purpose  of 
putting  out  or  investing  the  proceeds,  the  guard- 
ian must  malvc  the  investment  according  to  his 
best  judgment,  or  in  pursuance  of  any  order  that 
may  be  made  by  the  court.  [Amendment,  ap- 
proved April  15,  1880;  Amendments  1880,  p.  68.  In 
effect  April  15,  1880.] 

§  1781.  To  obtain  an  order  for  such  sale,  the 
guardian  must  present  to  the  court  in  which  he 
was  appointed  guardian  a  verified  petition  tliere- 
for,  setting  forth  the  condition  of  the  estate  of  his 
ward,  and  the  facts  and  circumstances  on  which 


§§  1782-1784  GUARDIAN    AND    WARD.  692 

the  petition  is  founded,  tending  to  show  the  nec- 
essity or  expediency  of  a  sale.  [Amendment,  ap- 
proved April  15,  1880;  Amendments  1880,  p.  69.  In 
effect  April  15,  1880.] 

§  1782.  If  it  appear  to  the  court,  or  a  judge 
thereof,  from  the  petition,  that  it  is  necessary  or 
would  be  beneficial  to  the  ward  that  the  real  es- 
tate, or  some  part  of  it,  should  be  sold,  or  that  the 
real  and  personal  estate  should  be  sold,  the  court 
must  thereupon  make  an  order  directing  the  next 
of  kin  of  the  ward,  and  all  persons  interested  in 
the  estate,  to  appear  before  the  court,  at  a  time 
and  place  therein  specified,  not  less  than  four  nor 
more  than  eight  weeks  from  the  time  of  making 
such  order,  to  show  cause  why  an  order  should  not 
be  granted  for  the  sale  of  such  estate.  If  it  appear 
that  it  is  necessary  or  would  be  beneficial  to  the 
ward  to  sell  the  personal  estate,  or  some  part  of 
it,  the  court  must  order  the  sale  to  be  made. 
[Amendment,  approved  April  15,  1880;  Amend- 
ments 1880,  p.  69.     In  effect  xYpril  15,  1880.] 

§  1783.  A  copy  of  the  order  must  be  personal- 
ly served  on  the  next  of  kin  of  the  ward,  and  on 
all  persons  interested  in  the  estate,  at  least  four- 
teen days  before  the  hearing  of  the  petition,  or 
must  be  published  at  least  once  a  week  for  three 
successive  weeks  in  a  newspaper  printed  in  the 
county,  or  if  there  be  none  printed  in  the  county, 
then  in  such  newspaper  as  may  be  specified  by  the 
court  in  the  order.  If  written  consent  to  making 
the  order  of  sale  is  subscribed  by  all  persons  in- 
terested therein,  and  the  next  of  kin.  notice  need 
not  be  served  or  published.  [Amendment,  ap- 
proved April  15,  1880;  Amendments  1880,  p.  69.  In 
effect  April  15.  1880.] 

Notice:  Compare  sec.  15.39. 

§  1784.  The  court,  at  the  time  and  place  ap- 
pointed in  the  order,  or  such  other  time  to  which 


693  GUARDIAN    AND    WARD.  §§  1785-1788 

the  bearing  is  postponed,  upon  proof  of  the  service 
or  publication  of  the  order,  must  hear  and  examine 
the  proofs  and  allegations  of  the  petitioner,  and  of 
the  next  of  l^in,  and  of  all  other  persons  interested 
in  the  estate  who  oppose  the  application.  [Amend- 
ment, approved  April  15.  1880;  Amendments  1880, 
p.  G9.  In  effect  April  15,  1880.] 
Compare:  Sec.  1540. 

§  1785.  On  the  hearing,  the  guardian  may  be 
examined  on  oath,  and  witnesses  may  be  produced 
and  examined  by  either  party,  and  process  to  com- 
pel their  attendance  and  testimony  may  be  issued 
by  the  court,  in  the  same  manner  and  with  lilie  ef- 
fect as  in  other  cases  provided  for  in  this  title. 
[Amendment,  approved  April  15,  1880;  Amend- 
ments 1880,  p.  69.     In  effect  April  15,  1880.] 

Compelling  attendance  and  testimony  of  wit- 
nesses: Sees.  1305,  1985  et  seq. 

§  1786.  If  any  person  appears  and  objects  to 
the  granting  of  any  order  prayed  for  under  the 
provisions  of  this  article,  and  it  appear  to  the  court 
that  either  the  petition  or  the  objection  thereto  is 
sustained,  the  court  may,  in  granting  or  refusing 
the  order,  award  costs  to  the  party  prevailing,  and 
enforce  the  payment  thereof. 

§  1787.  If,  after  a  full  examination,  it  appears 
necessary,  or  for  the  benefit  of  the  ward,  that  his 
real  estate,  or  some  part  thereof,  should  be  sold, 
the  court  may  grant  an  order  therefor,  specifying 
therein  the  causes  or  reasons  why  the  sale  is  ne- 
cessary or  beneficial,  and  may,  if  the  same  has 
been  been  prayed  for  in  the  petition,  order  such 
sale  to  be  made  either  at  public  or  private  sale. 

§  1788.  Every  guardian  authorized  to  sell  real 
estate  must,  before  the  sale,  give  bond  to  the 
ward,  with  sufficient  surety,  to  be  approved  by  the 
court,  or  a  judge  thereof,  with  condition  to  sell 


§§  1789-1791  GUARDIAN    AND    WARD.  694 

the  same  in  the  manner,  and  to  acconnt  for  the 
proceeds  of  the  sale  as  provided  for  in  this  chap- 
ter, and  chapter  seven  of  this  title.  [Amendment 
approved  April  15,  1880;  Amendments  1880,  p.  69. 
In  effect  xVpril  15,  1880.] 
Bond  on  sale  of  realty:  Sec.  1389. 

§  1789.  All  the  proceedings  under  petition  of 
guardians  for  sales  of  property  of  their  wards, 
giving-  notice,  and  the  hearing  of  such  petitions, 
granting  or  refusing  the  order  of  sale,  directing  the 
sale  to  be  made  at  public  or  private  sale,  reselling 
the  same  property,  return  of  sale,  and  application 
for  confirmation  thereof,  notice  and  hearing  of 
such  application,  making  orders  rejecting  or  con- 
firming sales  and  reports  of  sales,  ordering  and 
making  conveyances  of  property  sold,  account- 
ing and  the  settlement  of  accounts,  must  be  had 
and  made  as  required  by  the  provisions  of  this  ti- 
tle concerning  estates  of  decedents,  unless  other- 
wise specially  provided  in  this  chapter. 

Settlement  of  accounts,  of  guardian  of  infant  af- 
ter letters  revoked:  Sec.  1029. 

§  1790.  No  order  of  sale,  granted  in  pursuance 
of  this  article,  continues,  in  force  more  than  one 
year  after  granting  the  same,  without  a  sale  being 
had. 

§  1791.  All  sales  of  real  estate  of  wards  must 
be  for  cash,  or  for  part  cash  and  part  deferred 
payments,  the  credit  in  no  case  to  exceed  three 
years  from  date  of  sale,  as  in  the  discretion  of  the 
court  is  most  beneficial  to  the  ward.  Guardians 
making  sales  must  demand  and  receive  from  the 
purchasers,  in  case  of  deferred  payments,  notes, 
and  a  mortgage  on  the  real  estate  sold,  with  such 
additional  security  as  the  court  deems  necessary 
and  sufficient  to  secure  the  prompt  payment  of  the 
amounts  so  deferred,  and  the  interest  thereon. 
[Amendment  approved  April  15,  3880:  Amend- 
ments 1880,  p.  70.    In  effect  April  15,  1880.] 


695  GUARDIAN    AND    WARD.  §§  1792,  1793 

§  1792.  The  court,  ou  the  application  of  a 
guardian,  or  any  person  interested  in  the  estate  of 
any  ward,  after  such  notice  to  persons  interested 
therein  as  the  court  shall  direct,  may  authorize 
and  require  the  guardian  to  invest  the  proceeds 
of  sales  and  any  other  of  his  ward's  money  in 
his  hands,  in  real  estate,  or  in  any  other  manner 
most  to  the  interest  of  all  concerned  therein,  and 
the  court  may  mal^e  such  other  orders  and  give 
such  directions  as  are  needful  for  the  manage- 
ment, investment,  and  disposition  of  the  estate 
and  effects,  as  circumstances  require.  [Amend- 
ment approved  April  15,  1880;  Amendments  1880, 
p.  70.    In  effect  April  15,  1880.] 


ARTICLE  V. 

NONRESIDENT    GUARDIANS    AND    WARD. 

§  1793.  Guardians  of  nonresident  persons. 

§  1794.  Powers  and  duties  of  guardians  appointed  under  pre- 
ceding section. 

§  1795.  Such  guardians  to  give  bonds. 

5  179fi.  To  wtiat  guardianship  shall  extend. 

§  1797.  Removal  of  nonresident  ward's  property. 

§  1798.  Proceedings  on  such  removal. 

§  1799.  Discharge  of  person  in  possession. 

§  1793.    When  a  person  liable  to  be  put  under 
guardianship,  according  to  the  provisions  of  this 
chapter,  resides  without  this  State  and  has  estate 
^therein,  any  friend  of  sucli  person,  or  any  one  in- 
^  terested  in  his  estate,  in  expectancy  or  otherwise, 
r  may  apply  to  the  Superior  Court  of  any  county 
J  in  which  there  is  any  estate  of  such  absent  person, 
^  for  the  appointment  of  a  guardian,  and  if,  after 
1^  notice  given  to  all  interested,  in  such  manner  as 
^  such  court  orders  by  publication  or  otherwise,  and 
^  a  full  hearing  and  examination.  It  appears  proper, 
^  a  guardian  for  such   absent  person   may  be  ap- 
pointed.    [Amendment    approved    April  15,   1880; 
Amendments  1880,  p.  70.    In  effect  April  15,  1880.] 


§§  1794-1797  GUARDIAN    AND    WARD.  696 

Foreign  guardian:  Sec.  1913. 
Guardian,  appearance  by,  etc.:  Sees.  1722,  372. 
Judge  may  appoint  guardians  and  issue  letters 
of  guardianship  at  chambers:  Sec.  167. 

§  1794,  Every  guardian,  appointed  under  the 
preceding  section,  has  the  same  powers  and  per- 
forms tlie  same  duties,  witli  respect  to  the  estate 
of  the  ward  found  within  this  State,  and  with  re- 
spect to  the  person  of  the  ward,  if  he  shall  come 
to  reside  therein,  as  are  prescribed  with  respect 
to  any  other  guardian  appointed  under  this 
chapter. 

§  1795.  Every  guardian  must  give  bond  to  the 
ward,  in  the  manner  and  with  the  lilce  conditions 
as  hereinbefore  provided  for  other  guardians,  ex- 
cept that  the  provisions  respecting  the  inventory, 
the  disposal  of  the  estate  and  effects,  and  the  ac- 
count to  be  rendered  by  the  guardian,  must  be 
confined  to  such  estate  and  effects  as  come  to  his 
hands  in  this  State. 

Bond,  inventory,  account,  etc.:  Sec.  1754. 

§  1796.  The  guardianship  which  is  first  lawful- 
ly granted  of  any  person  residing  without  this 
State  extends  to  all  the  estate  of  the  ward  within 
this  State,  and  excludes  the  jurisdiction  of  the 
court  of  every  other  county.  [Amendment  ap- 
proved April  15,  1880;  Amendments  1880,  p.  70. 
In  effect  April  15,  1880.] 

§  1797.  When  the  guardian  and  ward  are  both 
nonresidents,  and  the  ward  is  entitled  to  property 
in  this  State,  which  may  be  removed  to  another 
State  or  foreign  country  without  conflict  with  any 
restriction  or  limitation  thereupon,  or  impairing 
the  right  of  the  ward  thereto,  such  property  may 
be  removed  to  the  State  or  foreign  country  of  the 
residence  of  the  ward,  upon  the  application  of  the 
guardian  to  the  Superior  Court  of  the  county  in 


697  GUARDIAN    AND   WARD.  §§  1798,  1799 

which  the  estate  of  the  ward,   or  the  principal 

part  thereof,  is  situated.     [Amendment  approved 

April  15,  1880;  Amendments  1880,  p.  70.  In  effect 
April  15,  1880.] 

§  1798.  The  application  must  be  made  upon 
ten  days'  notice  to  the  resident  executor,  admin- 
istrator, or  guardian,  if  there  be  such,  and  upon 
such  application  the  nonresident  guardian  must 
produce  and  file  a  certificate,  under  the  hand  of 
the  clerli  and  seal  of  the  court,  from  which  his 
appointment  was  derived,  shOAving: 

1.  A  transcript  of  the  record  of  his  appointment; 

2.  Tliat  he  has  entered  upon  the  discharge  of  his 
duties; 

3.  That  he  is  entitled,  by  the  laws  of  the  State 
of  his  appointment,  to  the  possession  of  the  estate 
of  the  ward;  or,  must  produce  and  file  a  certifi- 
cate, under  the  hand  and  seal  of  the  clerk  of  the 
court  having  jurisdiction  in  the  country  of  his 
residence,  of  the  estates  of  persons  under  guard- 
ianship, or  of  the  highest  court  of  such  country, 
attested  by  a  minister,  consul,  or  vice-consul  of  the 
United  States,  resident  in  such  country,  that,  by 
the  laws  of  such  country,  the  applicant  is  entitled 
to  the  custody  of  the  estate  of  his  ward,  without 
the  appointment  of  any  court.  Upon  such  appli- 
cation, unless  good  cause  to  the  contrary  is  shown, 
the  court  must  malce  an  order  granting  to  such 
guardian  leave  to  tal^e  and  remove  the  property 
of  his  ward  to  the  State  or  place  of  his  residence, 
which  is  authority  to  him  to  sue  for  and  receive 
the  same  in  his  own  name,  for  the  use  and  benefit 
of  his  ward.  [Amendment  approved  April  15, 
1880;  Amendments  1880,  p.  71.  In  effect  April  15, 
1880.] 

§  1799.    Such  order  is  a  discharge  of  the  execu- 
tor, administrator,  local  guardian,  or  other  person 
in  whose  possession  the  property  may  be  at  the 
Code  Civ.  Proc— 59. 


§  1800  GUARDIAN   AND   WARD.  698 

time  the  order  is  made,  on  filing  with  the  clerk 
of  the  court  a  receipt  therefor  of  a  foreign  guard- 
ian of  such  absent  ward,  and  transmitting  a 
duplicate  receipt,  or  a  certified  copy  of  such  re- 
ceipt, to  the  court  from  which  such  nonresident 
guardian  received  his  appointment.  [Amendment 
approved  :March  8,  1895;  Stats.  1895,  p.  28.  In  ef- 
fect in  sixtj^  days.] 


ARTICLE  VI. 

GENERAL   AND    MISCELLANEOUS    PROVISIONS. 

§  1800.  Examination  of  persons  suspected  of  defrauding 
wards  or  concealing  property. 

§  1801.  Removal  and  resignation  of  guardian,  and  surrender 
of  estate. 

§  1802.     Guardianship,   how  terminated. 

§  1803.     New  bond,   when  required. 

§  1804.     Guardian's  bond  to  be  filed.    Action  on. 

§  1805.    Limitation  of  actions  on  guardian's  bond. 

§  1806.  Limitation  of  actions  for  the  recovery  of  property 
sold. 

§  1807.  More  than  one  guardian  of  a  person  may  be  ap- 
pointed. 

§  1808.    Power  of  probate  judge  in  chambers. 

§  1809.  Provisions  of  section  ten  hundred  and  fifty-seven  ap- 
ply to  guardians. 

§  1800.  Upon  complaint  made  to  him  by  any 
guardian,  ward,  creditor,  or  other  person  interest- 
ed in  the  estate  or  having  a  prospective  interest 
therein  as  heir  or  otherwise,  against  any  one  sus- 
pected of  having  concealed,  embezzled,  or  convey- 
ed away  any  of  the  money,  goods,  or  efiCects,  or 
an  instrument  in  writing  belonging  to  the  ward 
or  to  his  estate,  the  Superior  Court,  or  a  judge 
thereof,  may  cite  such  suspected  person  to  appear 
before  such  court,  and  may  examine  and  proceed 
with  him  on  such  charge  in  the  manner  provided 
in  this  title  with  respect  to  persons  suspected  of 
and  charged  with  concealing  or  embezzling  the 
effects    of    a    decedent,     r  Amendment    approved 


699  GUARDIAN    AND    WARD.  §§  1801-1803 

April  15,  1880;  ADienclmeiits  1880,  p.  71.    In  effect 
April  15,  1880.] 

Embezzlemeut  of  property  of  estate:  Sec.  1458 
et  seq. 

§  1801.  When  a  guardian,  apointed  eitlier  by 
the  testator  or  a  court,  becomes  insane  or  other- 
wise incapable  of  discharging  his  trust  or  unsuit- 
able therefor,  or  has  wasted  or  mismanaged  the 
estate,  or  failed  for  thirty  days  to  render  an  ac- 
count or  malie  a  return,  the  Superior  Court  may, 
upon  such  notice  to  the  guardian  as  the  court  may 
require,  remove  him  and  compel  him  to  surrender 
the  estate  of  the  ward  to  the  person  found  to  be 
lawfully  entitled  thereto.  Every  guardian  may 
resign  when  it  appears  proper  to  allow  the  same; 
and  upon  the  resignation  or  removal  of  a  guard- 
ian, as  herein  provided,  the  court  may  appoint 
another  in  the  place  of  the  guardian  who  resigned 
or  was  removed.  |  Amendment  approved  April  15, 
1880;  Amendments  1880,  p.  71.  In  effect  April  15, 
1880.] 

§  1802.  The  marriage  of  a  minor  ward  termin- 
ates the  guardianship  of  the  person  of  such  ward, 
but  not  the  estate;  and  the  guardian  of  an  insane 
or  other  person  may  be  discharged  by  the  court, 
when  it  appears,  on  the  application  of  the  ward 
or  oirierwise.  that  the  guardianship  is  no  longer 
necessary.  [Amendment  approved  April  15,  1880; 
Amendments  1880,  p.  72.    In  effect  April  15,  1880.] 

§  1803.  The  court  may  require  a  new  bond  to 
be  given  by  a  guardian  whenever  such  court 
deems  it  necessary,  and  may  discliarge  the  exist- 
ing sureties  from  further  liability,  after  due  notice 
given  as  such  court  may  direct,  when  it  shall  ap- 
pear that  no  injury  can  result  therefrom  to  those 
interested  in  the  estate.  [Amendment  approved 
April  15,  1880;  Amendments  1880,  p.  72.  In  effect 
April  15,  1880.] 


§§  1804-1808  GUARDIAN    AND    WARD.  700 

§  1804.  Everj^  bond  given  by  a  guardian  must 
be  filed  and  preserved  in  tlie  oflice  of  the  clerk  of 
the  Superior  Court  of  the  county,  and  in  case  of  a 
breach  of  a  condition  thereof,  may  be  prosecuted 
for  the  use  and  benefit  of  the  ward,  or  of  any 
person  interested  in  the  estate.  [Amendment  ap- 
proved April  15,  1880;  Amendments  1880,  p.  71. 
In  effect  April  15,  1880.] 

Suit  on  bond,  party  beneficially  interested:  Sec. 
367. 

§  1805.  No  action  can  be  maintained  against 
the  sureties  on  any  bond  given  by  a  guardian,  un- 
less it  be  commenced  within  three  years  from  the 
discharge  or  removal  of  the  guardian;  but  if,  at 
the  time  of  such  discharge,  the  person  entitled  to 
bring  such  action  is  under  any  legal  disability  to 
sue,  the  action  may  be  commenced  at  any  time 
within  three  years  after  such  disability  is  re- 
moved. 

§  1806.  No  action  for  the  recovery  of  any  estate 
sold  by  a  guardian  can  be  maintained  by  the  ward, 
or  by  any  person  claiming  under  him,  unless  it  is 
commenced  within  three  years  next  after  the  ter- 
mination of  the  guardianship,  or,  when  a  legal 
disability  to  sue  exists  by  reason  of  minority  or 
otherwise,  at  the  time  when  the  cause  of  action 
accrues,  within  three  years  next  after  the  removal 
thereof. 

§  1807.  The  court,  in  its  discretion,  whenever 
necessary,  may  appoint  more  than  one  guardian 
of  any  person  subject  to  guardianship,  who  must 
give  bond  and  be  governed  and  liable  in  all  re- 
spects as  a  sole  guardian. 

§  1808.  Any  order  appointing  a  guardian,  must 
be  entered  as  and  become  a  decree  of  the  court. 
The  provisions  of  this  title  relative  to  the  estates 
of  decedents,  so  far  as  they  relate  to  the  practice 


701  SOLE    TRADERS.  §§  1809,  1812 

in  the  Superior  Court,   apply  to  proceedings  un- 
der  tills    chapter.      [Amendment    approved    April 
15,  1880;  Amendments  1880,  p.  72.    In  effect  April 
15,  1880.] 
Chambers,  power  at:  Sees.  IGO,  17G. 

y{|H^§  1809.    The  provisions  of  section  ten  hundred 

<:  and  fifty-seven  are  hereby  declared  to  apply  to 

>  guardians  appointed  by  the  court,  and  to  the  bonds 

talien  or  to  be  taken  from  such  guardians,  and  to 

the  sureties  on  such  bonds. 


TITLE  XII. 

OF   SOLE   TRADERS. 

§  1811.  Who  may  become  sole  traders. 

§  1812.  Notice,   how  given   and   what  to   contain. 

§  1813.  Petition,    what   to   contain   when   filed. 

§  1814.  May  have  five  hundred  dollars  of  community  or  hus- 
band's property. 

§  1815.  Who  may  oppose  it,  and  how. 

5  1816.  Trial  or  hearing. 

§  1817.  Decree,  what  it  must  be. 

§  1818.  Oath,  copy  of  order  to  be  recorded. 

§  1819.  Rights  and  liabilities  of  sole  traders. 

§  1820.  Sole  trader  must  maintain  her  children. 

§  1821.  Husband  of  sole  trader  not  liable  for  debts. 

§  1811.  A  married  woman  may  become  a  sole 
trader  by  the  judgment  of  the  Superior  Court  of 
the  county  in  w^hich  she  has  resided  for  six  months 
next  preceding  the  application,  f  Amendment  ap- 
proved February  26,  1881;  Stats.  1881.  p.  10.  In 
effect  February  26,  1881.] 

§  1812.  A  person  intending  to  malce  application 
to  become  a  sole  trader  must  publish  notice  of 
such  intention  in  a  newspaper  published  in  the 
county,  or,  if  none,  then  in  a  newspaper  publish- 
ed in  an  adjoining  county,  once  a  weelc  for  four 
successive    weeks.    The    notice   must    specify   the 


§§  1813-181 G  SOLE  TRADERS.  702 

day  upon  wliicli  application  will  be  made,  the 
nature  and  place  of  the  business  proposed  to  be 
conducted  by  her,  and  the  name  of  her  husband. 
[Amendment  approved  February  26,  1881;  Stats. 
1881,  p.  10.  In  effect  February  26,  1881.] 
Term,  abolition  of  terms:  Sec.  73. 

§  1813.  Ten  days  prior  to  the  day  named  in 
the  notice,  the  applicant  must  file  a  verified  peti- 
tion setting  forth: 

1.  That  the  application  is  made  in  good  faith, 
to  enable  the  applicant  to  support  herself,  or  her- 
self and  others  dependent  upon  her,  giving  their 
names  and  relation; 

2.  The  fact  of  insufficient  support  from  her  hus- 
band, and  the  causes  thereof,  if  known; 

3.  Any  other  grounds  of  application  which  are 
good  causes  for  a  divorce,  with  the  reason  why  a 
divorce  is  not  sought;  and 

4.  The  nature  of  the  business  proposed  to  be 
conducted,  and  the  capital  to  be  invested  therein, 
if  any,  and  the  sources  from  which  it  is  derived. 

§  1814.  The  applicant  may  invest  in  the  busi- 
ness proposed  to  be  conducted,  a  sum  derived  from 
the  community  property  or  of  the  separate  prop- 
erty of  the  husband,  not  exceeding  five  hundred 
dollars. 

§  1815.  Any  creditor  of  the  husband  may  op- 
pose the  application,  by  filing  in  the  court  (prior  to 
the  day  named  in  the  notice)  a  written  opposition 
verified,  containing  either: 

1.  A  specific  denial  of  the  truth  of  any  material 
allegation  of  the  petition;  or  setting  forth, 

2.  That  the  application  is  made  for  the  purpose 
of  defrauding  the  opponent;  or 

3.  That  the  application  is  made  to  prevent,  or 
will  prevent  him  from  collecting  his  debt. 

§  1816.    On  the  day  named  in  the  notice,  or  on 


703  SOLE  TRADERS.  §§  1817-1819 

such  other  day  to  which  the  hearing  may  be  post- 
poned by  the  court,  the  applicant  must  mali:e  proof 
of  publication  of  the  notice  hereinbefore  required, 
and  the  issues  of  fact  joined,  if  any,  must  be  tried 
as  in  other  cases;  if  no  issues  are  joined,  the  court 
must  hear  the  proofs  of  the  applicant  and  find 
the  facts  in  accordance  therewith. 

§  1817.  If  the  facts  found  sustain  the  petition, 
the  court  must  render  judgment  authorizing  the 
applicant  to  carry  on  in  her  own  name  and  on 
her  own  account  the  business  specified  in  the  no- 
tice and  petition. 

§  1818.  The  sole  trader  must  make  and  file 
with  the  clerk  of  the  court  an  affidavit,  in  the  fol- 
lowing form: 

I,  A.  B.,  do,  in  the  presence  of  Almighty  God, 
solemnly  swear  that  this  application  was  made  in 
■^  good  faith,  for  the  purpose  of  enabling  me  to  sup- 
^  port  myself  (and  any  dependent,  such  as  husband, 
<.  parent,  sister,  child,  or  the  like,  naming  them,  if 
;:^  any),  and  not  with  any  view  to  defraud,  delay,  or 
V  hinder  any  creditor  or  creditors  of  my  husband; 
^  and  that  of  the  moneys  so  to  be  used  by  me  in 
^  business,  not  more  than  five  hundred  dollars  have 
^^  come  either  directly  or  indirectlj"  from  my  hus- 
band.   So  held  me  God. 

A  certified  copy  of  the  decree,  with  this  oath  in- 
dorsed thereon,  must  be  recorded  in  the  office  of 
the  recorder  of  the  county  where  the  business  is 
to  be  carried  on,  in  a  book  to  be  kept  for  such 
purpose. 

§  1819.  When  the  judgment  is  made  and  en- 
tered, and  a  copy  thereof,  with  the  affidavit  pro- 
vided for  in  section  one  thousand  eight  hundred 
and  eighteen,  duly  recorded,  the  person  therein 
named  is  entitled  to  carry  on  the  business  speci- 
fied, in  her  own  name,  and  the  property,  reve- 
nues, money,  and  credits  so  by  her  invested,  and 


§§  1S20,  1821  SOLE  TRADERS.  704 

the  profits  thereof,  belong  exclusively  to  her,  and 
are  not  liable  for  any  debts  of  her  husband,  and 
she,  thereafter,  has  all  the  privileges  of,  and  is 
liable  to  all  legal  processes  provided  for  debtors 
and  creditors,  and  may  sue  and  be  sued  alone  with- 
out being  joined  with  her  husband;  provided,  how- 
ever, that  she  shall  not  be  at  liberty  to  carry  on 
said  business  in  any  other  county  than  that  nam- 
ed in  the  notice  provided  for  in  section  one  thou- 
sand eight  hundred  and  twelve,  until  she  has  re- 
corded in  such  other  county  a  copy  of  said  judg- 
ment and  affidavit.  [Amendment  approved  March 
16,  1876;  Amendments  1875-6,  p.  105.  In  effect 
March  16,  1876.] 

Sue  and  be  sued  alone:  Sec.  370. 

Husband  and  wife  parties  to  actions:  Sees.  370, 
371. 

§  1820.  A  married  woman  who  is  adjudged  a 
sole  trader  is  responsible  and  liable  for  the  main- 
tenance of  her  minor  children. 

§  1821.  The  husband  of  a  sole  trader  is  not  lia- 
ble for  any  debts  contracted  by  her  in  the  course 
of  her  sole  trader's  business,  unless  contracted  up- 
on his  written  consent. 


705  PROCEEDINGS    IN    INSOLVENCY.  §  1822 


TITLE  XIII. 

OP   PROCEEDINGS   IN   INSOLVENCY. 
V'      §  1822.     Statutes  in  relation  to,  continued  in  force. 

the 
insolvent 

^  debtors  and  protection  of  creditors,"  approved  May 
jp  4,   1852,   or  of  tbe  acts   amendatory  thereof,   ap- 
^    proved  respectively  :March  12,  1858,  April  27,  1860, 
and  April  27,  1803;  but  such  acts  are  recognized 
as  continuing  in  force  notwithstanding  the  provi- 
sions of  this  Code. 
Insolvency  act:  See  post,  Appendix,  p.  817  et  seq. 


^   §  1822.    Nothing  in  this  Code  affects  any  of 
,^  provisions  of  "an  act  for  the  relief  of  insolv 


'}\Uuy\^'^''i^^^ 


PAET   IV. 

OF  EVIDENCE. 


General  Definitions,  §§  1823-1839. 
Title  I.    Of  General  Principles,  §§  1844-1870. 

II.    Kinds  and  Degrees  of  Evidence,  §§  1875- 
1978. 

III.  Production  of  Evidence,  §§  1981-2054. 

IV.  Effect  of  Evidence,  §  2061. 

V.     Rights  and  Duties  of  Witnesses,  §§  2064- 

2070. 
VI.     Evidence  in  Particular  Cases,  and  Gen- 
eral Provisions,  §§  2074-2103. 

OP  EVIDENCE. 

GENERAL  DEFINITIONS  AND   DIVISIONS. 

§  1823.  Definition  of  evidence. 

§  1824.  Definition  of  proof. 

§  1825.  Definition  of  law  of  evidence. 

§  1826.  The  degree  of  certainty  required  to  establish  facts. 

§  1827.  Four  kinds  of  evidence  specified. 

§  1828.  Several  degrees  of  evidence  specified. 

§  1829.  Primary  evidence  defined. 

§  1830.  Secondary  evidence  defined. 

§  1831.  Direct    evidence    defined. 

§  3832.  Indirect  evidence  defined. 

§  1833.  Prima  facie  evidence  defined. 

§  1834.  Partial  evidence  defined. 

§  1835.  Satisfactory  evidence  defined. 

§  1836.  Indispensable  evidence  defined. 

§  1837.  Conclusive  evidence  defined. 

§  1838.  Cumulative  evidence  defined. 

§  1839.  Corroborative  evidence  defined. 

§  1823.  Judicial  evidence  is  the  means,  sanc- 
tioned by  law,  of  ascertaining  in  a  judicial  pro- 
ceeding tlie  truth  respecting  a  question  of  fact. 


707  EVIDENCE.  §§  1824-1823 

Evidence,  law  of:  Sec.  1825;  kinds  of:  Sec.  1827; 
degrees  of:  Sec.  1828  et  seq;  relevancy  of:  Sees. 
1868,  1870;  production  of:  See  sec.  1825,  subd.  3; 
value  and  effect  of:  See  sec.  1825,  subd.  5. 

§  1824.  Proof  is  the  effect  of  evidence,  the  es- 
tablishment of  a  fact  by  evidence. 

Proof,  degree  required:  Sec.  1826;  order  of:  Sees. 
607,  2042;  extent  of:  Sees.  1867,  1869;  limits  of: 
Sees.  1868,  1870;  burden  of:  Sees.  1869,  1981. 

s  §  1825.  The  law  of  evidence,  which  is  the  sub- 
^  ject  of  this  part  of  the  Code,  is  a  collection  of  gen- 
^    eral  rules  established  by  law: 

1.  For  declaring  what  is  to  be  taken  as  true 
without  proof; 

2.  For  declaring  the  presumptions  of  law,  both 
those  which  are  disputable  and  those  which  are 
conclusive;  and, 

3.  For  the  production  of  legal  evidence; 

4.  For  the  exclusion  of  whatever  is  not  legal; 

5.  For  determining  in  certain  cases,  the  value 
and  effect  of  evidence. 

Subdivision  2.  Presumptions:  Sees.  1959,  1961- 
1963  and  notes. 

Subdivision  3.  Production  of  evidence:  Sees. 
1981-2054. 

Subdivision  4.  Exclusion  of  evidence:  Sees. 
1867,  1868. 

Subdivision  5.  Value  and  effect  of  evidence: 
Sec.  2061;  also  see  sec.  1828  et  seq. 

§  1826.  The  law  does  not  require  demonstra- 
tions; that  is,  such  a  degree  of  proof  as,  excluding 
possibility  of  error,  produces  absolute  certainty, 
because  such  proof  is  rarely  possible.  Moral  cer- 
tainty only  is  required,  or  that  degree  of  proof 
which  produces  conviction  in  an  unprejudiced 
mind. 

Proof:  Sec.  1-824. 


§§  1827-1831  EVIDENCE.  708 

§  1827.    There  are  four  kinds  of  evidence: 

1.  Tlie  knowledge  of  the  court; 

2.  The  testimony  of  witnesses; 

3.  Writings; 

4.  Other  material  objects  presented  to  the 
senses. 

Subdivision  1.    Knowledge    of    the    court:  Sec. 
1875. 
Subdivision  2.    Witnesses:  Sees.  1878-1884. 
Subdivision  3.    Writings:  Sees.  1887-1951. 
Subdivision  4.    Other  material  objects:  Sec.  1954. 

§  1828.    There  are  several  degrees  of  evidence: 

1.  Primary  and  secondary; 

2.  Direct  and  indirect; 

3.  Prima  facie,  partial,  satisfactory,  indispensa- 
ble, and  conclusive.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  379.  In  effect 
July  1,  1874.] 

§  1829.  Primary  evidence  is  that  kind  of  evi- 
dence which,  under  every  possible  circumstance, 
affords  the  greatest  certainty  of  the  fact  in  ques- 
tion. Thus,  a  written  instrument  is  itself  the  best 
possible  evidence  of  its  existence  and  contents. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  p.  379.    In  effect  July  1,  1874.] 

§  1830.  Secondary  evidence  is  that  which  is  in- 
ferior to  primary.  Thus,  a  copy  of  an  instrument, 
or  oral  evidence  of  its  contents,  is  secondary  evi- 
dence of  the  instrument  and  contents.  [Amend- 
ment approved  March  24.  1874:  Amendments  1873- 
4,  p.  379.    In  effect  July  1,  1874.] 

Contents  of  a  writing,  evidence  of:  Sec.  1855. 

§  1831.  Direct  evidence  is  that  which  proves 
the  fact  in  dispute  directly,  without  an  inference 
or  presumption,  and  which  in  itself,  if  triie,  con- 
clusively establishes  that  fact.  For  example:  if 
the  fact  in  dispute  be  an  agreement,  the  evidence 


709  EVIDENCE.  §§  1832-1835 

of  a  witness  who  was  present,  and  witnessed  the 
makinj^  of  it,  is  direct. 

§  1832.  Indirect  evidence  is  that  which  tends 
to  establish  the  fact  in  dispute  by  proving  another, 
and  which,  though  true,  does  not  of  itself  con- 
clusively establish  that  fact,  but  which  affords  an 
inference  or  presumption  of  its  existence.  For  ex- 
ample: a  witness  proves  an  admission  of  the  party 
to  the  fact  in  dispute.  This  proves  a  fact,  from 
which  the  fact  in  dispute  is  inferred. 

Indirect  evidence:  Sees.  1957-1963. 

§  1833.  Prima  facie  evidence  is  that  which  suf- 
fices for  the  proof  of  a  particular  fact,  until  con- 
tradicted and  overcome  by  other  evidence.  For 
example:  the  certificate  of  a  recording  officer  is 
prima  facie  evidence  of  a  record,  but  it  may  after- 
Avard  be  rejected  upon  proof  that  there  is  no  such 
record.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  379.  In  effect  July  1,  1874.] 

Disputable  presumption:  Sec.  1963. 

§  1834.  Partial  evidence  is  that  which  goes  to 
establish  a  detached  fact,  in  a  series  tending  to  the 
fact  in  dispute.  It  may  be  received,  subject  to  be 
rejected  as  incompetent,  unless  connected  with  the 
fact  in  dispute  by  proof  of  other  facts.  For  exam- 
ple: on  an  issue  of  title  to  real  property,  evidence  of 
the  continued  possession  of  a  remote  occupant  is 
partial,  for  it  is  of  a  detached  fact,  which  may  or 
may  not  be  afterward  connected  with  the  fact  in 
dispute. 

Connected  with  the  fact  in  dispute:  Sec.  1868. 

§  1835.  That  evidence  is  deemed  satisfactory 
which  ordinarily  produces  moral  certainty  or  con- 
viction in  an  unprejudiced  mind.  Such  evidence 
alone  will  justify  a  verdict.  Evidence  less  than 
this  is  denominated  slight  evidence. 

Satisfactorv  evidence,  to  justify  verdict:  Sec. 
2061,  subd.  5. 

CodP  Civ.   Proc  — 60. 


§§  1836-1839  EVIDENCE.  710 

§  1836.    ludispeusable  evidence  is  that  without 
which  a  particular  fact  cannot  be  proved. 
Indispensable  evidence:  Sees.  1967-1974. 

§  1837.  Conclusive  or  unanswerable  evidence 
is  that  which  the  law  does  not  permit  to  be  con- 
tradicted. For  example:  the  record  of  a  court  of 
competent  jurisdiction  cannot  be  contradicted  by 
the  parties  to  it. 

Conclusive  evidence:  Sees.  1908,  1962,  1978. 

§  1838.  Cumulative  evidence  is  additional  evi- 
dence of  the  same  character  to  the  same  point. 

§  1839.  Corroborative  evidence  is  additional 
evidence  of  a  different  character,  to  the  same 
point. 


711  GENERAL    PRINCIPLES.  §  1844 


TITLE  I. 

OF  THE  GENERAL  PRINCIPLES  OF  EVIDENCE. 

§  1844.    One  witness  sufficient  to  prove  a  fact. 

§  1845.    Testimony  confined  to  personal  knowledge. 

§  1846.     Testimony  to  be  in  presence  of  persons  affected. 

§  1847.     Witness  presumed  to  speak  the  truth. 

§  1848.     One  person  not  affected  by  acts  of  another. 

§  1849.    Declarations   of   predecessor    in   title   evidence. 

§  1850.     Declarations  which  are  a  part  of  the  transaction. 

§  1851.     Evidence  relating  to  third  person. 

§  1852.    Declaration  of  decedent  evidence  of  pedigree. 

§  1853.  Declaration  of  decedent  evidence  against  his  succes- 
sor in  interest. 

§  1854.  When  part  of  a  transaction  proved,  the  whole  is  ad- 
missible. 

§  1855.    Contents  of  writing,  how  proved. 

§  1856.    An  agreement  reduced  to  writing  deemed  the  whole. 

§  1857.  Construction  of  language  relates  to  place  where 
used. 

§  1858.  Construction  of  statutes  and  instruments,  general 
rule. 

§  1859.     The  intention  of  the  Legislature  or  parties. 

§  1860.     The  circumstances  to  be  considered. 

§  1861.     Terms  to  be  construed  in  their  general  acceptation. 

§  1862.  Written  words  control  those  printed  in  a  blank 
form. 

§  1863.    Persons  skilled  may  testify  to  decipher  characters. 

§  1834.     Of  two  constructions,  which  preferred. 

§  1865.  A  written  instrument  construed  as  understood  by 
parties. 

§  1866.     Construction  in  favor  of  natural  right  preferred. 

§  1867.     Material  allegations  only  to  be  proved. 

§  1868.     Evidence  confined  to  material  allegations. 

§  1869.    Affirmative  only  to  be  proved. 

§  1870.     Facts  which  may  be  proved  on  trial. 

§  1844,  The  direct  evidence  of  one  witness  who 
Is  entitled  to  full  credit  is  sufficient  for  proof  of 
any  fact,  except  perjury  and  treason. 

One  witness,  witness,  definition:  Sec.  1878;  wit- 
ness, competency:  Sec.  1879  et  seq.;  two  witnesses 
for  lost  or  destroyed  will:  Sec.  1339;  perjury  and 
treason,  more  than  one  witness,  sec.  19G8. 


§§  1845-1848  GENERAL,   PRINCIPLES.  712 

§  1845.  A  witness  can  testify  of  tliose  facts 
only  which  he  knows  of  his  own  Ivnowledge;  that 
is,  which  are  derived  from  his  own  perceptions, 
except  in  those  few  express  cases  in  which  his 
opinions  or  inferences,  or  the  declarations  of  oth- 
ers, are  admissible. 

Opinions,  inferences,  declarations:  See  sec.  1870. 

§  1846.  A  witness  can  be  heard  only  upon  oath 
or  affirmation,  and  upon  a  trial  he  can  be  heard 
only  in  the  presence  and  subject  to  the  examina- 
tion of  all  the  parties,  if  they  choose  to  attend  and 
examine. 

Witness,  defined:  Sec.  1878. 

Witnesses,  competency  of:  Sec.  1879  et  seq. 

Oath  or  affirmation,  administration  of:  Sees. 
2093-2097. 

Examination  of  witnesses:  Sees.  2042-2054, 

§  1847.  A  witness  is  presumed  to  speak  the 
truth.  This  presumption,  however,  may  be  repell- 
ed by  the  manner  in  Avhich  he  testifies,  by  the 
character  of  his  testimony,  or  by  evidence  affect- 
ing his  character  for  truth,  honesty,  or  integrity, 
or  his  motives,  or  by  contradictory  evidence;  and 
the  jury  are  the  exclusive  judges  of  his  credibility. 

Witness:  Sees.  1878  et  seq. 

Presumed  to  speak  the  truth:  Sec.  1963,  subd. 
1;  evidence  of  good  character:  Sec.  2053. 

Presumption  repelled,  manner  of  testifying:  Sec. 
2061,  subd.  2;  character  of  testimony:  Sec^  2061, 
subd.  3;  impeaching  credit:  Sees.  2049,  2051,  2052; 
contradictory  evidence:  Sees.  2049,  2051. 

Jury  exclusive  judges  of  credibility:  Sec.  2061. 

§  1848.  The  rights  of  a  party  cannot  be  preju- 
diced by  the  declaration,  act,  or  omission  of  an- 
other, except  by  virtue  of  a  particular  relation  be- 
tween them;  therefore,  proceedings  against  one 
cannot  affect  another.  [Amendment  approved 
March  24,  1874;  Amendments  1873-4,  p.  380.  In 
effect  July  1,  1874.] 


713  GENERAL   PRINCIPLES.^  §§  1849-1853 

Books,  entries  in:  Sec.  1946. 

Declaration,  etc.,  of  another,  when  admissible: 
Sees.  1849-1853;  partner,  agent,  etc.:  Sec.  1870, 
subd.  5. 

§  1849.  Where,  however,  one  derives  title  to 
real  property'  from  another,  the  declaration,  act, 
or  omission  of  the  latter,  while  holding  the  title, 
in  relation  to  the  property,  is  evidence  against  the 
former. 

§  1850.  AVhere,  also,  the  declaration,  act,  or 
omission  forms  part  of  a  transaction,  which  is  it- 
self the  fact  in  dispute,  or  evidence  of  that  fact, 
such  declaration,  act,  or  omission  is  evidence,  as 
part  of  the  transaction. 

Declarations  before  others:  Sec.  1870,  subd.  3; 
declaration:  Sec.  1870,  subd.  4;  writing  evidence, 
to  explain:  Sec.  1860. 

§  1851.  And  where  the  question  in  dispute  be- 
tween the  parties  is  the  obligation  or  duty  of  a 
third  person,  whatever  would  be  the  evidence  for 
or  against  such  person  is  prima  facie  evidence  be- 
tween the  parties.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  380.  In  effect 
July  1,  1874.] 

§  1852.  The  declaration,  act,  or  omission  of  a 
member  of  a  family,  who  is  a  decedent,  or  out  of 
the  jurisdiction,  is  also  admissible  as  evidence  of 
common  reputation,  in  cases  where,  on  questions 
of  pedigree,  such  reputation  is  admissible. 

Declaration  of  decedent:  Sec.  1870,  subd.  4. 

Common  reputation  on  questions  of  pedigree, 
etc.:  Sec.  1870,  subd.  11. 

§  1853.  The  declaration,  act,  or  omission  of  a 
decedent,  having  sufficient  knowledge  of  the  sub- 
ject, against  his  pecuniary  interest,  is  also  admis- 
sible as  evidence  to  that  extent  against  his  suc- 
cessor in  interest. 


§§  1854,  1855  'GENERAL   PRINCIPLES.  714 

Decedent's  declaration  against  interest:  Sec. 
1870,  siibd.  4;  entries  and  other  writings:  Sec.  1946. 

§,  1854.  When  part  of  an  act,  declaration,  con- 
versation, or  writing  is  given  in  evidence  by  one 
party,  the  whole  on  the  same  subject  may  be  in- 
quired into  by  the  other;  when  a  letter  is  read,  the 
answer  may  be  given;  and  when  a  detached  act, 
declaration,  conversation,  or  writing  is  given  in 
evidence,  any  other  act,  declaration,  conversation, 
or  writing,  which  is  necessary  to  make  it  under- 
stood, may  also  be  given  in  evidence. 

Refreshing  memory,  witness. — Opposite  party 
has  a  right  to  see  the  document:  Sec.  2047. 

Cross-examination:  Sec.  2048. 

§  1855.  There  can  be  no  evidence  of  the  con- 
tents of  a  writing,  other  than  the  writing  itself, 
except  in  the  following  cases: 

1.  Where  the  original  has  been  lost  or  destroy- 
ed; in  which  case  proof  of  the  loss  or  destruction 
must  first  be  made; 

2.  When  the  original  is  in  the  possession  of  the 
party  against  whom  the  evidence  is  offered,  and 
he  fails  to  produce  it  after  reasonable  notice; 

3.  When  the  original  is  a  record  or  other  docu- 
ment in  the  custody  of  a  public  officer; 

4.  When  the  original  has  been  recorded,  and  a 
certified  copy  of  the  record  is  made  evidence  by 
this  Code  or  other  statute; 

5.  When  the  original  consists  of  numerous  ac- 
counts or  other  documents,  which  cannot  be  ex- 
amined in  court  without  great  loss  of  time,  and 
the  evidence  sought  from  them  is  only  the  general 
result  of  the  whole. 

In  the  cases  mentioned  in  subdivisions  three  and 
four,  a  copy  of  the  original  or  of  the  record  must 
be  produced;  in  those  mentioned  in  subdivisions 
one  and  two,  either  a  copy  or  oral  evidence  of  the 
contents.  [Amendment  approved  ]March  24,  1874; 
Amendments  1873-4,  p,  380,    In  effect  July  1,  1874.] 


715  GENERAL   PRINCIPLES.  §  1856 

Coutents  of  writing,  showing  permissible:  Sees. 
1937,  1909. 

Original  in  possession  of  opponent,  notice  to  pro- 
duce: Sees.  1938,  1939. 

Public  writings  generally:  Sees.  1892-1926. 

Atlidavits:  Sees.  2U09  et  seq. 

Subdivision  4.  Certified  copies  of  records:  See 
sees.  1919  et  seq. 

§  1856.  AVhen  the  terms  of  an  agreement  have 
been  reduced  to  writing  by  the  parties,  it  is  to  be 
considered  as  containing  all  those  terms,  and 
therefore  there  can  be  between  the  parties  and 
their  representatives,  or  successors  in  interest,  no 
evidence  of  the  terms  of  the  agreement  other  chan 
the  contents  of  the  writing,  except  in  the  following 
cases: 

1.  Where  a  mistake  or  imperfection  of  the  writ- 
ing is  put  in  issue  by  the  pleadings; 

2.  Where  the  validity  of  the  agreement  is  the 
fact  in  dispute.  But  this  section  does  not  exclude 
other  evidence  of  the  circumstances  under  which 
the  agreement  was  made,  or  to  which  it  relates, 
as  delined  in  section  eighteen  hundred  and  sixty, 
or  to  explain  an  extrinsic  ambiguity,  or  to  estab- 
lish illegality  or  fraud.  The  term  agreement  in- 
cludes deeds  and  wills,  as  well  as  contracts  be- 
tween parties. 

Writing  supersedes  oral  negotiations:  Civ.  Code, 
sec.  1625;  parol  evidence  to  vary  or  contradict 
written  agreement:  Civ.  Code,  sec.  1639;  fraud,  to 
establish:  See  Civ.  Code,  sec.  1640;  mistake  or  im- 
perfection, to  correct:  Sec.  1856,  subd.  1,  supra; 
Civ.  Code,  see.  1640;  revision  and  reformation  of 
contracts  for  fraud  or  mistake:  Civ.  Code,  sees. 
3399-3402;  surrounding  circumstances  to  show: 
Sec.  1860;  where  validity  of  agreement  controvert- 
ed: Sec.  1856,  subd.  2,  supra. 

Absolute  conveyance.— Mortgage:  Sec.  744. 

liecitals  in  document:  Sec.  1962,  subd.  2. 


§§  1857-1859  GENERAL    PRINCIPLES.  716 

Usage,  etc.:  Sec.  1870,  siibd.  12. 
Conveyaiices  of  real  property:  Sec.  2077. 
Date:  Sec.  19G2,  subcl.  2. 
Consideration:  Sec.  1962,  subd.  2. 
Alterations  and  erasures:  Sec.  1982. 

§  1857.  Tlie  language  of  a  writing  is  to  be  in- 
terpreted according  to  the  meaning  it  bears  in  the 
place  of  its  execution,  unless  the  parties  have  ref- 
ence  to  a  different  place. 

Interpretation  of  contract,  lex  loci:  Civ.  Code, 
sec.  1646. 

§  1858.  In  the  construction  of  a  statute  or  in- 
strument, the  office  of  the  judge  is  simply  to  ascer- 
tain and  declare  what  is  in  terms  or  in  substance 
contained  therein,  not  to  insert  what  has  been 
omitted,  or  to  omit  what  has  been  inserted;  and 
where  there  are  several  provisions  or  particulars, 
such  a  construction  is,  if  possible,  to  be  adopted 
as  will  give  effect  to  all. 

Construction,  generally:  Sec.  1859;  giving  effect 
to  all:  Civ.  Code,  sees.  1641,  3541. 

§  1859.  In  a  construction  of  a  statute,  the 
intention  of  the  Legislature,  and  in  the  construc- 
tion of  the  instrument,  the  intention  of  the  par- 
ties, is  to  be  pursued  if  possible;  and  when  a  gen- 
eral and  particular  provision  are  inconsistent,  the 
latter  is  paramount  to  the  former.  So  a  particular 
Intent  will  control  a  general  one,  that  is  inconsist- 
ent with  it. 

Words  giving  joint  authority  give  authority  to  a 
majority  unless  otherwise  expressed  in  the  "act" 
giving  the  authority:  Sec.  15,  ante.  Construction 
of  tliis  Code:  Sees.  4-18,  ante. 

Directory  statutes:  Sees.  225,  632. 

Repeals.— Conflict  between  statutes  or  parts  of 
same  statutes,  retroactive  operation,  etc.:  Sec.  18. 

Time,  computation  of,  construction  of  statutes 
directing-  Sec.  12. 


717  GENERAL    PRINCIPLES.  §§  1860-1864 

Mistake:  Sec.  185G;  estoppel:  Sec.  19G2;  usage: 
Sec.  1870,  subd.  12;  deeds  as  to  real  property:  Sec. 
2077. 

§  1860.  For  the  proper  construction  of  an  in- 
strument, the  circumstances  under  which  it  was 
made,  including  the  situation  of  the  subject  of  the 
instrument,  and  of  the  parties  to  it,  may  also  be 
shown,  so  that  the  judge  be  placed  in  the  position 
of  those  whose  language  he  is  to  interpret. 

Surrounding  circumstances  may  be  shown:  Civ. 
Code,  sec.  1047;  usage:  Sec.  1S70.  subd.  12;  descrip- 
tive part  of  conveyance:  Sec.  2077. 

§  1861.  The  terms  of  a  writing  are  presumed  to 
have  been  used  in  their  primary  and  general  ac- 
ceptation, but  evidence  is  nevertheless  admissible 
that  they  have  a  local,  technical,  or  otherwise  pe- 
culiar signification,  and  were  so  used  and  under- 
stood in  the  particular  instance,  in  which  case  the 
agreement  must  be  construed  accordingly. 

Signification  of  terms:  Compare  Civ.  Code,  sees. 
1G44,  1645.    See,  also,  sec.  1870,  subd.  12,  post. 

§  1862.  When  an  instrument  consists  partly  of 
written  words  and  partly  of  a  printed  form,  and 
the  two  are  inconsistent,  the  former  controls  the 
latter. 

Compare  Civ.  Code,  sec.  1651. 

§  1863.  When  the  characters  in  which  an  in- 
strument is  written  are  difficult  to  be  deciphered, 
or  the  language  of  the  instrument  is  not  under- 
stood by  the  court,  the  evidence  of  persons  skilled 
in  deciphering  the  characters,  or  Avho  understand 
the  language,  is  admissible  to  declare  the  charac- 
ters or  the  meaning  of  the  language. 

See  sec.  1870,  subds.  9,  10. 

§  1864.  When  the  terms  of  an  agreement  have 
been  intended  in  a  different  sense  by  the  different 


§§  1865-1868  GENERAL    PRINCIPLES.  718 

parties  to  it,  that  sense  is  to  prevail  against  either 
party  in  which  he  supposed  the  other  understood 
it,  and  when  different  constructions  of  a  provision 
are  otherwise  equally  proper,  that  is  to  be  taken 
which  is  most  favorable  to  the  party  in  whose 
favor  the  provision  was  made. 
Compare  Civ.  Code,  sees.  1649,  1654. 

§  1865.  A  written  notice,  as  well  as  every  other 
writing,  is  to  be  construed  according  to  the  ordi- 
nary acceptation  of  its  terms.  Thus,  a  notice  to 
the  drawers  or  indorsers  of  a  bill  of  exchange  or 
promissory  note,  that  it  has  been  protested  for 
want  of  acceptance  or  payment,  must  be  held  to 
import  that  the  same  has  been  duly  presented  for 
acceptance  or  payment,  and  the  same  refused,  and 
that  the  holder  looks  for  payment  to  the  person 
to  whom  the  notice  is  given. 

Ordinary  acceptation:  See  sec.  1861.  Compare 
Civ.  Code,  sec.  1644;  notice  of  dishonor:  Civ.  Code, 
sec.  3143. 

§  1866.  When  a  statute  or  instrument  is  equal- 
ly susceptible  of  two  interpretations,  one  in  favor 
of  natural  right  and  the  other  against  it,  the  for- 
mer is  to  be  adopted. 

§  1867.  None  but  a  material  allegation  need  be 
proved. 

Complaint:  See  sec.  426;  material  allegation,  de- 
fined: Sec.  463;  not  controverted:  Sec.  462. 

Material  evidence:  See  sec.  1868. 

§  1868.  Evidence  must  correspond  with  the 
substance  of  the  material  allegations,  and  be  rele- 
vant to  the  question  in  dispute.  Collateral  ques- 
tions must  therefore  be  avoided.  It  is,  however, 
within  the  discretion  of  tlie  court  to  permit  inquiry 
into  a  collateral  fact,  when  such  fact  is  directly 
connected  with  the  question  in  dispute,  and  is  es- 
sential to  its  proper  determination,  or  when  it  af- 
fects the  credibility  of  a  witness. 


719  GENERAL    PRINCIPLES.  §§  1869,  1870 

Yariauce,  sees.  4G9-471. 

Relevant  evidence.— Objection  or  exception  to 
evidence:  Sec.  C4G. 

Collateral  fact,  connecting:  Sec.  1870;  credibility 
of  witness:  Sees.  1847,  1870,  subd.  16. 

Material:  See  sec.  18G7. 

§  1869.  Each  party  must  prove  his  own  affirm- 
ative allegations.  Evidence  need  not  be  given  in 
support  of  a  negative  allegation,  except  when  such 
negative  allegation  is  an  essential  part  of  the 
statement  of  the  right  or  title  on  which  the  cause 
of  action  or  defense  is  founded,  nor  even  in  such 
case  when  the  allegation  is  a  denial  of  the  exist- 
ence of  a  document,  the  custody  of  which  be- 
longs to  the  opposite  party. 

Burden  of  proof:  See.  1981. 

§  1870.  In  conformity  with  the  preceding  pro- 
visions, evidence  may  be  given  upon  a  trial  of  the 
following  facts: 

1.  The  precise  fact  in  dispute; 

2.  The  act,  declaration,  or  omission  of  a  party, 
as  evidence  against  such  party; 

3.  An  act  or  declaration  of  another,  in  the  pres- 
t;;  ence  and  within  the  observation  of  a  party,  and 
^    his  conduct  in  relation  thereto; 

%  4.  The  act  or  declaration,  verbal  or  written,  of 
V  a  deceased  person  in  respect  to  the  relationship, 
x;  birth,  marriage,  or  death  of  any  person  related  by 
o  blood  or  marriage  to  such  deceased  person;  the 
^  act  or  declaration  of  a  deceased  person  done  or 
\^  made  against  his  interest  in  respect  to  his  real 
\  property;  and  also  in  criminal  actions,  the  act  or 
^  declaration  of  a  dying  person,  made  under  a  sense 
of  impending  death,  respecting  the  cause  of  his 
death; 

5.  After  proof  of  a  partnership  or  agency,  the 
act  or  declaration  of  a  partner  or  agent  of  the 
party,  within  the  scope  of  the  partnership  or  agen- 
cy, and  during  its  existence.    The  same  rule  ap- 


§  1870  GENERAL    PRINCIPLES.  720 

plies  to  the  act  or  declaration  of  a  joint  owner, 
joint  debtor,  or  other  person  jointly  interested  with 
the  party; 

6.  After  proof  of  a  conspiracy,  the  act  or  dec- 
laration of  a  conspirator  against  his  coconspira- 
tor,  and  relating  to  the  conspiracy; 

7.  The  act,  declaration,  or  omission  forming  part 
of  a  transaction,  as  explained  in  section  eighteen 
hundred  and  fifty; 

8.  The  testimony  of  a  witness  deceased,  or  out 
of  the  jurisdiction,  or  unable  to  testify,  given  in  a 
former  action  between  the  same  parties,  relating 
to  the  same  matter; 

9.  The  opinion  of  a  witness  respecting  the  iden- 
tity or  handwriting  of  a  person,  when  he  has 
knowledge  of  the  person  or  handwriting;  his  opin- 
ion on  a  question  of  science,  art,  or  trade,  when 
he  is  skilled  therein; 

10.  The  opinion  of  a  subscribing  witness  to  a 
writing,  the  validity- of  which  is  in  dispute,  respect- 
ing the  mental  sanity  of  the  signer;  and  the  opin- 
ion of  an  intimate  acquaintance  respecting  the 
mental  sanity  of  a  person,  the  reason  for  the  opin- 
ion being  given; 

11.  Common  reputation  existing  previous  to  the 
controversy,  respecting  facts  of  a  public  or  general 
interest  more  than  thirty  years  old,  and  in  cases 
of  pedigree  and  boundary; 

12.  Usage,  to  explain  the  true  character  of  an 
act,  contract,  or  instrument,  where  such  true  char- 
acter is  not  otherwise  plain;  but  usage  is  never 
admissible,  except  as  an  instrument  of  interpreta- 
tion; 

13.  Monuments  and  inscriptions  in  public  places, 
as  evidence  of  common  reputation;  and  entries  in 
family  bibles,  or  other  family  books  or  charts;  en- 
gravings on  rings,  family  portraits,  and  the  like, 
as  evidence  of  pedigree; 

14.  The  contents  of  a  writing,  when  oral  evi- 
dence  thereof   is   admissible; 

15.  Any  other  facts  from  which  the  facts  in  is- 
sue are  presumed  or  are  logically  inferable; 


721  KNOWLEDGE   OF  THE   COURT.  §  1875 

IG.  Such  facts  as  serve  to  show  the  credibility 
of  a  witness,  as  explained  in  section  eighteen  hun- 
dred and  forty-seven. 

Offer  to  compromise:   Sec.  2078;  confession  in  di- 
vorce suit:    Sec.  2071). 
Subd.  7.    Kes  gestae:  See  sec.  1850,  ante. 


TITLE  II. 

OF  THE  KINDS  AND   DEGREP:S  OF  EVIDENCE. 

Chapter  I.  Knowledge  of  the  court,  §  1875. 

II.  Witnesses,  §§  1878-1884. 

III.  Writings,  §§  1887-1951. 

IV.  Material     objects     presented     to     the 

senses,  other  than  writings,  §  1954. 
V.    Indirect  evidence,  §§  1957-1963. 
VI.    Indispensable  evidence,  §§  19G7-1974. 
VII.    Conclusive     and     unanswerable     evi- 
dence, §  1978. 

CHAPTER  I. 

KNOWLEDGE   OF  THE  COURT. 

§  1875.     Certain   facts    of   general    notoriety   assumed    to    be 
true.    Specification  of  such  facts. 

§  1875.  Courts  take  judicial  notice  of  the  fol- 
lowing facts: 

1.  The  true  signification  of  all  English  words 
and  phrases,  and  of  all  legal  expressions: 

2.  Whatever  is  established  by  law; 

3.  Public  and  private  official  acts  of  the  legisla- 
tive, executive,  and  judicial  departments  of  this 
State  and  of  the  United  States; 

4.  The  seals  of  all  the  courts  of  this  State  and  of 
the  United  States; 

Code.  Civ.  Proc— 61. 


§§  1878.  1879  WITNESSES.  722 

5.  The  accession  to  office  and  the  official  signa- 
tures and  seals  of  office  of  the  principal  officers  of 
government  in  the  legislative,  executive,  and  judi- 
cial departments  of  this  State  and  of  the  United 
States; 

6.  The  existence,  title,  national  flag,  and  seal  of 
every  State  or  sovereign  recognized  by  the  execu- 
tive power  of  the  United  States; 

7.  The  seals  of  courts  of  admiralty  and  mari- 
time jurisdiction,  and  of  notaries  public; 

8.  The  laws  of  nature,  the  measure  of  time, 
and  the  geographical  divisions  and  political  history 
of  the  world. 

In  all  these  cases  the  court  may  resort  for  its 
aid  to  appropriate  books  or  documents  of  refer- 
ence. 

CHAPTER  II. 

WITNESSES. 

1  1878.  Witnesses  defined. 

:§  1879.  All  persons  capable  of  perceptions  and  communica- 
tion may  be  witnesses. 

§  1880.  Persons  who  cannot  testify.  * 

§  1881.  Persons  in  certain  relations  to  parties  prohibited. 

§  1882.  \.aen  privileged  persons  must  testify. 

§  1883.  Jludge  or  a  juror  may  be  witness. 

§  1884.  \>  iien  an  interpreter  to  be  sworn. 

§  1878.  A  witness  is  a  person  whose  declara- 
tion under  oath  is  received  as  evidence  for  any 
purpose,  whether  such  decln ration  be  made  on  oral 
examination  or  by  deposition  or  affidavit. 

Compare:    Sec.  2002. 

Ornl  examination:  Sec.  1846;  general  rules  of: 
Sec.  20^2  et  seq. 

Deposition:  Sees.  2019-2038. 

Affidavit:  Sees.  2009-2015. 

§  1879.  All  persons,  without  exception,  other- 
wise than  is  specified  in  the  next  two  sections, 
who,  having  organs  of  sense,  can  perceive,  and, 


723  WITNESSES.  §§  1880,  1881 

perceiving,  can  make  known  their  perceptions  to 
others,  may  be  witnesses.  Therefore,  neither  par- 
ties nor  other  persons  who  have  an  interest  in  the 
event  of  an  action  or  proceeding  are  excluded;  nor 
those  who  have  been  convicted  of  crime;  nor  per- 
sons on  account  of  their  opinions  on  matter^  of 
religious  belief;  although,  in  every  case,  the  cred- 
ibility of  the  witness  may  be  drawn  in  question, 
as  provided  in  section  eighteen  hundred  and  forty- 
seven. 

Persons  incompetent— to  witnesses:  Sec.  1880. 

§  1880.  The  following  persons  cannot  be  wit- 
nesses: 

1.  Those  who  are  of  unsound  mind  at  the  time 
of  their  production  for  examination; 

2.  Children  under  ten  years  of  age,  who  appear 
incapable  of  receiving  just  impressions  of  the  facts 
respecting  which  they  are  examined,  or  of  relating 
mem  truly; 

3.  Parties  or  assignors  of  parties  to  an  action 
or  proceeding,  or  persons  in  whose  behalf  an  action 
or  proceeding  is  prosecuted  against  an  executor  or 
administrator,  upon  a  claim  or  demand  against 
the  estate  of  a  deceased  person,  as  to  any  matter 
of  fact  occurring  before  the  death  of  such  de- 
ceased person.  [Amendment  approved  April 
16,  1880;  Amendments  1880,  p.  112.  In  effect 
April  16,  1880.] 

§  1881.  There  are  particular  relations  in 
which  it  is  the  policy  of  the  law  to  encourage  con- 
lidence  and  to  preserve  it  inviolate;  therefore,  a 
person  cannot  be  examined  as  a  witness  in  the 
following  cases: 

1.  A  husband  cannot  be  examined  for  or  against 
his  wife  without  her  consent;  nor  a  wife  for  or 
against  her  husband  without  his  consent;  nor 
can  either,  during  the  marriage  or  afterward,  be, 
without  the  consent  of  the  other,  examined  as  to 
any  communication  made  by  one  to  the  other  dur- 


§§  1882-188  4  WITNESSES.  724 

ing  the  marriage;  but  this  exception  does  not  ap- 
ply to  a  civil  action  or  proceeding  by  one  against 
the  other,  nor  to  a  criminal  action  or  piroceeding 
for  a  crime  committed  by  one  against  the  other; 

2.  An  attorney  cannot,  without  the  consent  of 
his 'client,  be  examined  as  to  any  communication 
made  by  the  client  to  him,  or  his  advice  given 
thereon  in  the  course  of  professional  employ- 
ment; nor  can  an  attorney's  secretary,  stenograph- 
er, or  clerli  be  examined,  without  the  consent  of 
his  employer,  concerning  any  fact  the  knowledge 
of  which  has  been  acquired  in  such  capacity; 

3.  A  clergyman  or  priest  cannot,  without  the 
consent  of  the  person  malting  the  confession,  be 
examined  as  to  any  confession  made  to  him  in  his 
professional  character  in  the  course  of  discipline 
enjoined  by  the  church  to  which  he  belongs; 

4.  A  licensed  physician  or  surgeon  cannot,  with- 
out the  consent  of  his  patient,  be  examined  in  a 
civil  action  as  to  any  information  acquired  in  at- 
tending the  patient,  which  was  necessary  to  en- 
able him  to  prescribe  or  act  for  the  patient; 

5.  A  public  officer  cannot  be  examined  as  to 
communications  made  to  him  in  official  confi- 
dence, when  the  public  interests  would  suffer  by 
the  disclosure.  [Amendment  approved  March  23, 
1898;  Stats.  1893,  p.  301.    In  effect  immediately.] 

§  1882.  Repealed.  [Amendments  1875-6,  105. 
In  effect  February  28,  1876.] 

§  1883.  The  judge  himself  or  any  juror  may 
be  called  as  a  witness  by  either  party;  but  in  such 
case  it  is  in  the  discretion  of  the  court  or  judge 
to  order  the  trial  to  be  postponed  or  suspended, 
and  to  take  place  before  another  judge  or  jury. 

§  1884.  When  a  witness  does  not  understand 
and  speak  the  English  language,  an  interpreter 
must  be  sworn  to  interpret  for  him.     Any  person, 


725  WRITINGS.  §§  1187-1889 

•a  resident  of  the  proper  county,  may  be  summon- 
ed by  any  court  or  judge  to  appear  before  such 
court  or  judge  to  act  as  interpreter  in  any  action 
or  proceeding.  The  summons  must  be  served  and 
returned  in  like  manner  as  a  subpoena.  Any  per- 
son so  summoned,  who  fails  to  attend  at  the  time 
and  place  named  in  the  summons,  is  guilty  of  a 
contempt. 

Subpoena:  Sec.  1985,  et  seq. 

Contempt:  Sees.  1200,  1219. 

Acts  authorizing  appointment  of  Italian  inter- 
preter: See  post,  Appendix,  p.  856. 


CHAPTER   III. 

WRITINGS.  \ 

Article  1.     Writings  in   General. 
II.    Public   Writings. 
III.     Private  Writings. 

ARTICLE  I. 

WRITINGS   IN   GENERAL. 

§  1887.    Writings,   public  and  private. 
§  1888.     Public  writings  defined. 
§  18S9.    All  others  private. 

§  1887.    Writings  are  of  two  Ivinds: 

1.  Public;  and, 

2.  Private. 

§  1888.    Public  writings  are: 

1.  The  written  acts  or  records  of  the  acts  of  the 
sovereign  authority,  of  otticial  bodies  and  tribun- 
als, and  of  public  officers,  legislative,  judicial,  and 
executive,  whether  of  this  State,  of  the  United 
States,  of  a  sister  State,  or  of  a  foreign  country; 

2.  Public  records,  kept  in  this  State,  of  private 
writings. 

§   1889.    All  other  Mritiugs  are  private. 


§  1892  WRITIiNGS.  720 

ARTICLE  II. 

PUBLIC    WRITINGS. 

§  1892.  Every  citizen  entitled  to  inspect  and  copy  public 
writings. 

§  1S93.  Public  oflBcers  bound  to  give  copies. 

§  1894.  Four  kinds  of  public  writings. 

§  1895.  Laws,  written  or  unwritten. 

§  1896.  Written  laws  defined. 

§  1897.  Constitution    and    statutes. 

§  1898.  Public    and   private    statutes    defined. 

§  1899.  Unwritten  law  defined. 

§  1900,  Books   containing  laws   presumud   to   be  correct. 

§  1901.  Public  seal  authenticates  a   law   or  document. 

§  1902.  Other  evidence   of   laws   of  other   States. 

§  1903.  Recitals   in  statutes,   how  far  evidence. 

§  1904.  Judicial  record  defined. 

§  1905.  Record,  how  authenticated  as  evidence, 

§  1906.  Record  of  a  foreign   country,   how  authenticated. 

§  1907.  Oral  evidence  of  a  foreign  record. 

§  1908.  Effect  of  a  judgment  upon  rights  in  various  cases. 

§  1909.  Eifect  of  other  judicial  orders,  when  conclusive, 

§  1910.  Where  parties  are  to  be  deemed  the  same. 

§  1911.  What  deemed  adjudged  in  a  judgment. 

§  1912.  Where   sureties   bound,    principal    is   also. 

§  1913.  Record  of  another  State,   its  effect. 

§  1914.  Record   of  a   court   of  admiralty. 

§  1915.  Effect  of  a  foreign   judgment. 

§  1916.  Manner  of  impeaching  a  record. 

§  1917.  The  jurisdiction  necessary  in   a   judgment. 

§  1918.  Manner   of   proving   other   official   documents. 

•§  1919.  Public   record   of   private   writing   evidence. 

§  1920.  Entries   in   official   books   primary  evidence. 

§  1921.  Justice's  judgment  in  other  States,  how  proved. 

§  1922,  Same. 

§  1923.  Contents   of   other   official   certificates. 

§  1924.  Provi-Ions  in  relation  to  States  apply  to  Territories. 

§  1925.  Certificates  of  purchase  primary  evidence  of  own- 
ership. 

§  1926.  Entries  made  by  officers  or  boards  primary  evi- 
dence, 

§  1892.  Every  citizen  has  a  right  to  inspect 
and  talce  a  copy  of  any  public  writinc:  of  this 
State,  except  as  otherwise  expressly  provided  by 
statute. 

Public  records,  etc.,  open    to    inspection;  Polit. 


727  WRITINGS.  §§  1S93-1895 

§  1893.  Every  public  officer  liaviug  the  custody 
ot  a  public  writiug,  wliicli  a  citizen  has  a  right  to 
inspect,  is  bound  to  give  him,  on  demand,  a  cer- 
tified copy  of  it,  on  payment  of  the  legal  fees 
therefor,  and  such  copy  is  admissible  as  evidence 
in  like  cases  and  with  like  effect  as  the  original 
writing.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  381.  In  effect  July  1, 
1874.] 

Inspection:  The  public  records,  and  other  mat- 
ters in  the  office  of  any  officer,  are  at  all  times, 
during  office  hours,  open  to  the  inspection  of  any 
citizen  of  this  state.  In  all  actions  for  divorce, 
the  pleadings  and  the  testimony  taken  and  filed 
in  said  actions  shall  not  be  by  the  clerk  with 
whom  the  same  is  filed,  or  the  referee  before  whom 
the  testimony  is  taken,  made  public,  nor  shall  the 
same  be  allowed  to  be  inspected  by  any  person  ex- 
cept the  parties  that  may  be  interested,  or  the 
attorneys  to  the  action,  or  by  an  order  of  the  court 
in  which  the  action  is  pending;  a  copy  of  said  or- 
der must  be  filed  with  the  clerk.  In  cases  of  at- 
tachment, the  clerk  of  the  court  with  whom  the 
complaint  is  filed  shall  not  make  public  the  fact 
of  the  filing  of  such  complaint,  or  of  the  issuing 
of  such  attachment,  until  after  the  filing  of  re- 
turn of  service  of  attachment:  Polit.  Code,  sec, 
1032. 

§  1894,  Public  writings  are  divided  into  four 
classes: 

1.  Laws; 

2.  Judicial  records; 

3.  Otlier  oflicial   documents; 

4.  Public  records,  kept  in  this  State,  of  private 
writings, 

§  1895,  Laws,  whether  organic  or  ordinary, 
are  either  written  or  unwritten. 


§§  1896-1901  WRITINGS.  728 

§  1896.  A  written  law  is  that  whicli  is  pro- 
mulgated in  writing,  and  of  wliicli  a  record  is  in 
existence. 

§  1897.  The  organic  law  is  the  constitution  of 
government,  and  is  altogether  written.  Other 
written  laws  are  denominated  statutes.  The  writ- 
ten law  of  this  State  is  therefore  contained  in  its 
Constitution  and  statutes,  and  in  the  Constitution 
and  statutes  of  the  United  States. 

§  1898.  Statutes  are  public  or  private.  A  pri- 
vate statute  is  one  which  concerns  only  certain 
designated  individuals  and  affects  only  their  pri- 
vate rights.  All  other  statutes  are  public,  in 
which  are  included  statutes  creating  or  affecting 
corporations. 

§  1899.  Unwritten  law  is  the  law  not  promul- 
gated and  recorded,  as  mentioned  in  section  eight- 
een hundred  and  ninety-six,  but  which  is,  never- 
theless, observed  and  administered  in  the  courts 
of  the  country.  It  has  no  certain  repository,  but 
is  collected  from  the  reports  of  the  decisions  of 
the  courts  and  the  treatises  of  learned  men. 

§  1900.  Books  printed  or  published  under  the 
authority  of  a  sister  State  or  foreign  country,  and 
purporting  to  contain  the  statutes,  code,  or  oth- 
er written  law  of  such  State  or  country,  or  proved 
to  be  commonly  admitted  in  the  tribunals  of  such 
State  or  country,  as  evidence  of  the  written  law 
thereof,  are  admissible  in  this  State  as  evidence  of 
such  law. 

Books— historical,  etc.,  sec.  1936:  resort  to,  sec. 
1875;  authority  of,  sec.  1963;  subd.  35,  36. 

Sister  State— scope  of  expression:   Sec.  1924. 

§  1901.  A  copy  of  the  written  law  or  other  pub- 
lic writing  of  any  State  or  country,  attested  by 
the  certificate  of  the  officer  having  charge  of  the 


729  WRITINGS.  §§  1902-1905 

original,  under  tlie  public  seal  of  the  State  or 
country,  is  admissible  as  evidence  of  sucli  law 
or  writing.  [Amendment  approved  March  24, 
1874:  Amendments  1873-4,  p.  381.  In  effect  July 
1,  1874.] 

See  post,  sec.  1919. 

Certificate— requisites  of:  Sec.  1923. 

§  1902.  The  oral  testimony  of  witnesses,  sliill- 
ed  therein,  is  admissible  as  evidence  of  the  un- 
written law  of  a  sister  State  or  foreign  country, 
as  are  also  printed  and  published  books  of  reports 
of  decisions  of  the  courts  of  such  State  or  country, 
or  proved  to  be  commonly  admitted  in  such  courts. 

§  1903.  The  recitals  in  a  public  statute  are  con- 
clusive evidence  of  the  facts  recited,  for  the  pur- 
pose of  carrying  it  into  effect,  but  no  further.  The 
recitals  in  a  private  statute  are  conclusive  evi- 
dence between  parties  who  claim  under  its  provis- 
ions, but  no  further. 

Recitals— in  written  instrument:  Sec.  1962,  subd. 
2. 

§  1904.  A  judicial  record  is  the  record  or  ofii- 
cial  entry  of  the  proceedings  in  a  court  of  jus- 
tice, or  of  the  official  act  of  a  judicial  officer,  in 
an  action  or  special  proceeding. 

Judgment  roll:  Sec.  670. 

Execution  book  as  evidence:  Sec.  683. 

§  1905.  A  judicial  record  of  this  State,  or  of 
the  United  States,  may  be  proved  by  the  produc- 
tion of  the  original  or  by  a  copy  thereof  certified 
by  the  clerk  or  other  person  having  the  legal  cus- 
v^  tody  thereof.  That  of  a  sister  State  may  be 
>-  proved  by  the  attestation  of  the  clerk,  and  the 
^  seal  of  the  court  annexed,  if  there  be  a  clerk  and 
^  seal,  together  with  a  certificate  of  the  chief 
^v  judge  or  presiding  magistrate,  that  the  attestation 
S^  is  in  due  form. 


§§  1906,  1907  WRITINGS.  730 

Judicial  record,  need  of  seal:  Sec.  153,  subd.  3; 
appointment  of  executor,  etc.,  sec.  1429. 

Judicial  record  of  a  sister  State— U.  S.  Const, 
art.  4,  sec.  1. 

Certificate:  Sec.  1923. 

§  1906.  A  judicial  record  of  a  foreign  country 
may  be  proved  by  the  attestation  of  the  clerk, 
with  the  seal  of  the  court  annexed,  if  there  be  a 
cleric  and  seal,  or  of  the  legal  lieeper  of  the  record, 
with  the  seal  of  his  office  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  chief  judge 
or  presiding  magistrate,  that  the  person  making 
the  attestation  is  the  clerk  of  the  court,  or  the  le- 
gal keeper  of  the  record,  and,  in  either  case,  that 
the  signature  of  such  person  is  genuine,  and  that 
the  attestation  is  in  due  form.  The  signature  of 
the  chief  judge  or  presiding  magistrate  must  be 
authenticated  by  the  certificate  of  the  minister  or 
embassador,  or  a  consul,  vice-consul,  or  consular 
agent  of  the  United  States  in  such  foreign  coun- 
try. [Amendment  approved  March,  24,  1874; 
Amendments  1873-4,  p.  382.  In  effect  July  1, 
1874.] 

Certificate:   Sec.  1923. 

§  1907.  A  copy  of  the  judicial  record  of  a  for- 
eign country  is  also  admissible  in  evidence,  upon 
proof: 

1.  That  the  copy  offered  has  been  compared  by 
the  witness  with  the  original,  and  is  an  exact 
transcript  of  the  whole  of  it: 

2.  That  such  original  was  in  the  custody  of  the 
clerk  of  the  court,  or  other  legal  keeper  of  the 
same;  and, 

3.  That  the  copy  is  duly  attested  by  a  seal 
which  is  proved  to  be  the  seal  of  the  court  where 
the  record  remains,  if  it  be  the  record  of  a  court; 
or  if  there  be  no  such  seal,  or  if  it  be  not  a  rec- 
ord of  a  court,  by  the  signature  of  the  legal  keep- 
er of  the  original. 


731  WRITINGS.  §§1908,  1909 

§  1908.  The  effect  of  a  judgment  or  final  order 
in  an  action  or  special  proceeding  before  a  court 
or  judge  of  this  State,  or  of  the  United  States, 
having  jurisdiction  to  pronounce  the  judgment  or 
order,  is  as  follows: 

1.  In  case  of  a  judgment  or  order  against  a  spe- 
cific thing,  or  in  respect  to  the  probate  of  a  will, 
or  the  administration  of  the  estate  of  a  decedent, 
or  in  respect  to  the  personal,  political,  or  legal 
condition  or  relation  of  a  particular  person,  the 
judgment  or  order  is  conclusive  upon  the  title  to 
the  thing,  the  will,  or  administration,  or  the  con- 
dition or  relation  of  the  person; 

2.  In  other  cases,  the  judgment  or  order  is,  in 
respect  to  the  matter  directly  adjudged,  conclu- 
sive between  the  parties  and  their  successors  in 
interest  by  title  subsequent  to  the  commencement 
of  the  action  or  special  proceeding,  litigating  for 
the  same  thing  under  the  same  title  and  in  the 
same  capacity,  provided  they  have  notice  actual 
or  constructive,  of  the  pendency  of  the  action  or 
proceeding.  [Amendment  approved  March  24, 
1874:  Amendments  1873-4,  p.  382.  In  effect  July 
1,  1874.] 

See  sec.  1912,  post. 

Jurisdiction,  and  collateral  attacks:    Sec.    1917. 

Validity  of  judgment  when  founded  on  defective 
service  by  publication:  Sec.  412. 

Probate  and  administration,  etc.:  Sec.  1333. 

Order  for  sale  of  lands:  Sec.  1536. 

Title:  Sec.  409. 

Parties,  etc.:  Sec.  1910. 

Matter  directly  adjudged:   Sec.  1911. 

Counter-claim  barred  by  defendant's  omission  to 
sot  up  same:   Sec.  439. 

Partition,  judgment  in:  Sec.  766. 

Sureties:  Sec.  1911. 

§  1909.  Other  judicial  orders  of  a  court  or 
judge  of  this  State,  or  of  the  United  States,  ere- 


§§1910-1913  WRITINGS.  732 

ate  a  disputable  presumption,  according  to  the 
matter  directly  determined,  betAveen  the  same 
parties  and  their  representatives  and  successors 
In  interest  by  title  subsequent  to  the  commence- 
ment of  the  action  or  special  proceeding,  litigating 
for  the  same  thing  under  the  same  title  and  in 
the  same  capacity. 

Disputable  presumptions:  See  sec.  1963  and 
notes. 

Parties  and  privies:  See  sec.  1908,  subd.  2,  sec. 
1910. 

§  1910.  The  parties  are  deemed  to  be  the  same 
when  those  between  whom  the  evidence  is  offered 
were  on  opposite  sides  in  the  former  case,  and  a 
judgment  or  other  determination  could  in  that 
case  have  been  made  between  them  alone,  though 
other  parties  were  joined  with  both  or  either. 

§  1911.  That  only  is  deemed  to  have  been  ad- 
judged in  a  former  judgment  which  appears  upon 
its  face  to  have  been  so  adjudged,  or  which  was 
actually  and  necessarily  included  therein  or  ne- 
cessary thereto. 

§  1912.  Whenever,  pursuant  to  the  last  four 
sections,  a  party  is  bound  by  a  record,  and  such 
party  stands  in  the  relation  of  a  surety  for  anoth- 
er, the  latter  is  also  bound  from  the  time  that  he 
has  notice  of  the  action  or  proceeding,  and  an  ap- 
portunity  at  the  surety's  request  to  join  in  the  de- 
fense. 

§  1913.  The  effect  of  a  judicial  record  of  a  sis- 
ter State  is  the  same  in  this  State  as  in  the  State 
where  it  was  made,  except  that  it  can  only  be  en- 
forced here  by  an  action  or  special  proceeding, 
and  except,  also,  that  the  authority  of  a  guardian 
or  committee,  or  of  an  executor  or  administrator, 
does  not  extend  beyond  the  jurisdiction  of  the 
government  under  which  he  was  invested  with 
his  authority. 


733  WRITINGS.  §§  1914-1918 

§  1914.  The  effect  of  the  judicial  record  of  a 
court  of  admiralty  of  a  foreijin  country  is  the 
same  as  if  it  were  the  record  of  a  court  of  admir- 
alty of  the  Uuited  States. 

vC^§  1915.    The  effect  of  the  judgment  of  any  oth- 

^er  tribunal  of  a  foreign  country  having  jurisdic- 

nJ  tion  to  pronounce  the  judgment,  is  as  follows: 

\      1.    In  case  of  a  judgment     against     a  specific 

thing,  the  judgment  is  conclusive  upon  the  title 

to  the  thing; 

2.  In  case  of  a  judgment  against  a  person,  the 
judgment  is  presumptive  evidence  of  a  right  as 
between  the  parties  and  their  successors  in  inter- 
est by  a  subsequent  title,  and  can  only  be  repelled 
by  evidence  of  a  want  of  jurisdiction,  want  of  no- 
tice to  the  party,  collusion,  fraud,  or  clear  mistake 
of  law  or  fact. 

§  1916.  Any  judicial  record  may  be  impeached 
by  evidence  of  a  want  of  jurisdiction  in  the  court 
or  judicial  officer,  of  collusion  between  the  parties, 
or  of  fraud  in  the  party  offering  the  record,  in 
respect  to  the  proceedings. 

§  1917.  The  jurisdiction  sufficient  to  sustain  a 
record  is  jurisdiction  over  the  cause,  over  the  par- 
ties, and  over  the  thing,  when  a  specific  thing  is 
the  subject  of  the  judgment. 

s>      §   1918.    Other  official  documents  may  be  prov- 

/  ed  as  follows: 

f      1.    Acts  of  the  executive  of  this  State,  by  the 

*  records  of  the  State  Department  of  the  State 
and  of  the  United  States,  by  the  records  of  the 
State  Department  of  the  United  States,  certified 
by  the  heads  of  those  departments  respectively. 
They  may  also  be  proved  by  public  documents 
printed  by  the  order  of  the  Legislature  or  Con- 
gress, or  either  house  thereof; 
2.  The  proceedings  of  the  Legislature  of  this 
Code  Civ.  rroc— 62. 


§  1918  WRITINGS.  734 

State  or  of  Congress,  by  the  journals  of  those  bod- 
ies respectively,  or  either  house  thereof,  or  by  pub- 
lished statutes  or  resolutions,  or  by  copies  certified 
by  the  clerk  or  printed  by  their  order; 

3.  The  acts  of  the  executive,  or  the  proceedings 
of  the  legislature  of  a  sister  State  in  the  same 
manner; 

4.  The  acts  of  the  executive,  or  the  proceedings 
of  the  legislature  of  a  foreign  country,  by  journals 
published  by  their  authority,  or  commonly  received 
in  that  country  as  such,  or  by  a  copy  certified  un- 
der the  seal  of  the  country  or  sovereign,  or  by  a 
recognition  thereof  in  some  public  act  of  the  exec- 
utive of  the  United  States; 

5.  Acts  of  a  municipal  corporation  of  this 
State,  or  of  a  board  or  department  thereof,  by  a 
copy,  certified  by  the  legal  keeper  thereof,  or  by  a 
printed  book  published  by  the  authority  of  such 
corporation; 

G.  Documents  of  any  other  class  in  this  State, 
by  the  original,  or  by  a  copy,  certified  by  the  legal 
keeper  thereof; 

7.  Documents  of  any  other  class  in  a  sister 
State,  by  the  original,  or  by  a  copy,  certified  by 
the  legal  keeper  thereof,  together  with  the  certifi- 
cate of  the  secretary  of  state,  judges  of  the  su- 
preme, superior,  or  county  court,  or  mayor  of  a 
city  of  such  State,  that  the  copy  is  duly  certified 
by  the  oflicer  having  the  legal  custody  of  the 
original; 

8.  Documents  of  any  other  class  in  a  foreign 
country,  by  the  original,  or  by  a  copy,  certified  by 
the  legal  keeper  thereof,  with  a  certificate,  under 
seal  of  the  country  or  sovereign,  that  the  docu- 
ment is  a  valid  and  subsisting  document  of  such 
country,  and  that  the  copy  is  duly  certified  by  the 
officer  having  the  legal  custody  of  the  original; 

9.  Documents  in  the  departments  of  the  United 
States  government,  by  the  certificate  of  the  legal 
custodian  thereof.    [Amendment  approved  March 


735  WRITINGS.  §§  1919-1922 

24,  1874;  Amendments  1873-4,  p.  383.  In  effect 
July  1st.  1874.] 

Certificate:   Sec.  1923. 

Documents  in  this,  state:    See  also  sec.  1920. 

Documents  in  sister  state.— "Sister  state"  in- 
cludes United  States  and  territories:    Sec.  1924. 

§  1919.  A  public  record  of  a  private  writing 
may  be  proved  by  the  original  record,  or  by  a  copy 
thereof,  certified  by  the  legal  keeper  of  the  record. 

Compare  sec.  1855,  subd.  1. 

Certificate:    Sec.  1923. 

Executor  or  administrator,  appointment  of:  Sec. 
1429. 

§  1920.  Entries  in  public  or  other  ofiicial  books 
or  records,  made  in  the  i^erformance  of  his  duty 
by  a  public  officer  of  this  State,  or  by  another 
person  in  the  performance  of  a  duty  specially  en- 
joined by  law,  are  prima  facie  evidence  of  the 
facts  stated  therein.     [In  effect  July  1st,  1874.] 

Ofiicial  documents— proof  of,  sec.  1918. 

Entries— by  officer  or  board  of  officers,  etc:  Sec. 
1920. 

§  1921.  A  transcript  from  the  record  or  docket 
V  of  a  justice  of  the  peace  of  a  sister  State,  of  a 
^  judgment  rendered  by  him,  of  the  proceedings  in 
^  the  action  before  the  judgment,  of  the  execution 
;^  and  return,  if  any,  subscribed  by  the  justice  and 
f^  verified  in  the  manner  prescribed  in  the  next  sec- 
^  tion,  is  admissible  evidence  of  the  facts  stated 
"^  therein. 

§  1922.  There  must  be  attached  to  the  trans- 
cript a  certificate  of  the  justice  that  the  transcript 
is  in  all  respects  correct,  and  that  he  had  jurisdic- 
^  tion  of  the  action,  and  also  a  further  certificate  of 
V.  the  clerk  or  prothonotary  of  the  county  in  which 
^  the  justice  resided  at  the  time  of  rendering  the 
'^  judgment,  under  the  seal  of  the  county,  or  the 
^   seal  of  the  court  of  common  pleas  or  county  court 


§§  1923-1926  WRITINGS.  736 

thereof,  certifying  that  the  person  subscribing  the 
transcript  was,  at  tlie  date  of  tlie  jndgment,  a 
justice  of  the  peace  in  the  county,  and  tliat  tlie 
signature  is  genuine.  Such  judgment,  proceed- 
ings, and  jurisdiction  may  also  be  proved  by  the 
justice  himself,  on  the  production  of  his  docket,  or 
by  a  copy  of  the  judgment,  and  his  oral  examina- 
tion as  a  witness. 

§  1923.  Whenever  a  copy  of  a  writing  is  certi- 
fied for  the  purpose  of  evidence,  the  certificate 
must  state  in  substance  that  the  copy  is  a  correct 
copy  of  the  original,  or  of  a  specified  part  thereof, 
as  the  case  may  be.  The  certificate  must  be  un- 
der the  official  seal  of  the  certifying  officer,  if 
there  be  any,  or  if  he  be  the  clerk  of  a  court  hav- 
ing a  seal,  under  the  seal  of  such  court.  [Amend- 
ment approved  March  24,  1874;  Amendments 
1873-4,  p.  384.    In  effect  July  1st,  1874.] 

§  1924.  The  provisions  of  the  preceding  sections 
of  this  article  applicable  to  the  public  writings  of 
a  sister  State,  are  equally  applicable  to  the  pub- 
lic writings  of  the  United  States  or  a  Territory  of 
the  United  States.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  385.  In  effect 
July  1st,  1874.  J 

§  1925.  A  certificate  of  purchase  or  of  location 
of  any  lands  in  this  State,  issued  or  made  in  pur- 
suance of  any  law  of  the  United  States  or  of  this 
State,  is  primary  evidence  that  the  holder  or  as- 
signee of  such  certificate  is  the  owner  of  the  land 
described  therein;  but  this  evidence  may  be  over- 
come by  proof  that  at  the  time  of  the  location,  or 
time  of  filing  a  pre-emption  claim  on  AAiiich  the 
certificate  may  have  been  issued,  the  land  was  in 
the  adverse  possession  of  the  adverse  party,  or 
those  imder  whom  he  claims,  or  that  the  adverse 
party  is  holding  the  land  for  mining  purposes. 

§  1926.    An  entry  made  by  an  officer,  or  board 


737  WRITINGS.  §§  1929,  1930 

of  officers,  or  under  the  direction  and  in  the  pres- 
ence of  eitlier,  in  the  course  of  official  duty,  is 
prima  facie  evidence  of  the  facts  stated  in  such 
entry.  [Amendment  approved  March  24,  1874; 
Amendments,  1878-4,  p.  385.  In  effect  July  1st, 
1874.] 

ARTICLE  III. 

PRIVATE  WRITINGS. 

§  1929.  Private  writings  classified. 

§  1930.  Seal   defined. 

§  1931.  Manner   of   making   it. 

§  1932.  Effect  of  a  seal. 

§  1933.  Execution   of  an  instrument  defined. 

§  1934.  Compromise   of  a  debt   without  seal   good. 

§  1935.  Subscribing   witness    defined. 

§  1936.  Books,    maps,    etc.,    how   far   evidence. 

§  1937.  Original  writing  to  be  produced  or  accounted  for. 

§  1938.  When  in  possession  of  adverse  party,   notice  to  be 

given. 

§  1939.  Writings  called  for  and  inspected  may  be  withheld. 

§  1940.  Where  there  is  a  subscribing  witness,  the  proof. 

§  1941.  Other  witnesses  may  also  testify. 

§  1942.  When  evidence  of  execution  not  necessary. 

§  1943.  Evidence   of   handwriting. 

§  1944.  Allowed   by   comparison. 

§  1945.  Same. 

§  1946.  Entries    of    decedent's    evidence    in    specified    cases. 

§  1947.  Copies   of   entries   also   allowed. 

§  1948.  Piivate  writings   acknowledged  and   certified. 

§  1949.  County   clerks   to   keep   private   papers   deposited. 

§  1950.  Public   records   not  to   be   carried   about. 

g  1951.  Instrument  conveying  or  affecting  real  property  may 
be  read  in  evi(?ence. 

§  1929.    Private  writings  are  either— 

1.  Sealed;   or, 

2.  Unsealed. 

No  distinction— between  sealed  and  unsealed 
writings:  Sec.  1932. 

§  1930.  A  seal  is  a  particular  sign,  made  to  at- 
test in  the  most  formal  manner,  the  execution  of 
an  instrument. 

Seal  generally:    Sec.  14:  requisite:    Sec.  1931. 


§§  1931-1935  WRITINGS.  738 

§  1931.  A  public  seal  in  this  State  is  a  stamp 
or  impression  made  by  a  public  officer  with  an 
instrument  provided  by  law,  to  attest  the  execution 
of  an  official  or  public  document,  upon  the  paper, 
or  upon  any  substance  attached  to  the  paper, 
which  is  capable  of  receiving  a  visible  impression. 
A  private  seal  may  be  made  in  the  same  manner 
by  any  instrument,  or  it  may  be  made  by  the  scroll 
of  a  pen,  or  by  writing  the  word  "seal"  against 
the  signature  of  the  writer.  A  scroll  or  other  sign, 
made  in  a  sister  State  or  foreign  country,  and 
there  recognized  as  a  seal,  must  be  so  regarded  in 
this  State.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  385.  In  effect  July  1st, 
1874.] 

Scope  of  word    "seal":  Sec.   14. 

Impression  of  seal— Civil  Code:  Sec.  1628. 

Seals  of  courts:    Sees.  147-153. 

§  1932.  There  shall  be  no  difference  hereafter, 
in  this  State,  between  sealed  and  unsealed  writ- 
ings. A  writing  under  seal  may  therefore  be 
changed,  or  altogether  discharged,  by  a  writing 
not  under  seal.  [Amendment  approved  March  24, 
1874;  Amendments  1873-4,  386.  In  effect  July  1st, 
1874.] 

Corresponding  provisions:  See  Civil  Code,  sec. 
1629. 

Agreement  of  composition  —  requires  no  seal: 
Sec.  1934. 

§  1933.  The  execution  of  an  instrument  is  the 
subscribing  and  delivering  it,  with  or  without  af- 
fixing a  seal. 

§  1934.  An  agreement  in  writing  without  a  seal 
for  the  compromise  or  settlement  of  a  debt,  is  as 
obligatory  as  if  a  seal  were  affixed. 

§  1935.  A  subscribing  witness  is  one  who  sees 
a  writing  executed  or  hears  it  acknowledged,  and 


739  WRITINGS.  §§  1936-1939 

at  the  request  of  the  party  thereupon  signs  his 
name  as  a  witness. 

§  1936.  Historical  works,  boolis  of  science  or 
art,  and  published  maps  or  charts,  when  made  by 
persons  indifferent  between  the  parties,  are  prima 
facie  evidence  of  facts  of  general  notoriety  and 
interest.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  385.    In  effect  July  1,  1874.] 

Books— as  aid  to  court:  Sec,  1875;  as  evidence: 
Sec.  1900;  presumptions  as  to:  Sec.  1903,  subds.  35, 
36. 

§  1937.    The  original  writing  must  be  produced 
and  proved,  except  as  provided  in  sections  eight- 
een hundred  and  fifty-five  and  nineteen  hundred 
v<^  and  nineteen.    If  it  has  been  lost,  proof  of  the  loss 
v>  must  first  be  made  before  evidence  can  be  given 
^  of  its  contents.    Upon  such  proof  being  made,  to- 
"<^  gether  with  proof  of  the  due  execution  of  the  writ- 
V  ing,  its  contents  may  be  proved  by  a  copy,  or  by 
*-.  a  recital  of  its  contents  in  some  authentic  docu- 
^    ment,  or  by  the  recollection  of  a  witness,  as  pro- 
vided in  section  eighteen  hundred  and  fifty-five. 

§  1938.  If  the  writing  be  in  the  custody  of  the 
adverse  party,  he  must  first  have  reasonable  notice 
to  produce  it.  If  he  then  fail  to  do  so,  the  con- 
tents of  the  writing  may  be  proved  as  in  case  of 
its  loss.  But  the  notice  to  produce  it  is  not  neces- 
sary where  the  writing  is  itself  a  notice,  or  where 
it  has  been  wrongfully  obtained  or  withheld  by 
the  adverse  party. 

Document  in  possession— of  opponent:  Sec.  1855, 
subd.  2. 

§   1939.    Though    a   writing    called    for   by   one 
party  is  produced  by  the  other,  and  is  thereupon 
'^■inspected  by  the  party  calling  for  it.  he  is  not  ob- 
'^liged  to  produce  it  as  evidence  in  the  case. 

Writing  shown  to  witness:    See  sec.  2054,  post. 


§§  1940-1944  WRITINGS.  740 

§   1940.    Any  writing  may  be  proved  either: 

1.  By  any  one  who  saAv  the  writing  executed; 
or, 

2.  By  evidence  of  the  genuineness  of  the  hand- 
writing of  the  malcer;  or, 

3.  By  a  subscribing  witness.  [Amendment  ap- 
proved' March  24,  1874;  Amendments  1873-4,  386. 
In  effect  July  1st,  1874.] 

Proof  of  execution  of  writing— by  admission: 
Sec.  1942. 

Proof  of  handwriting:  Sec.  1943. 

Subscribing  Avitness:  Sec.  1935;  other  evidence 
of  execution  wlien  admissible:  Sees.  1941-1945;  on 
contest  of  will:  Sec.  1315. 

§  1941.  If  the  subscribing  witness  denies  or 
does  not  recollect  the  execution  of  the  writing,  its 
execution  may  still  be  proved  by  other  evidence. 

§  1942.  Where,  however,  evidence  is  given  that 
the  party  against  whom  the  Avriting  is  offered  has 
at  any  time  admitted  its  execution,  no  other  evi- 
dence of  the  execution  need  be  given,  when  the 
instrument  is  one  mentioned  in  section  nineteen 
hundred  and  forty-five,  or  one  produced  from  the 
custody  of  the  adverse  party,  and  has  been  acted 
upon  by  him  as  genuine. 

§  1943.  The  handM^riting  of  a  person  may  be 
proved  by  any  one  who  believes  it  to  be  his,  and 
who  has  seen  him  write,  or  has  seen  writings  pur- 
porting to  be  his,  upon  which  he  has  acted  or  been 
charged,  and  who  has  thus  acquired  a  knowledge 
of  his  handwriting. 

§  1944.  Evidence  respecting  the  handwriting 
may  also  be  given  by  a  comparison,  made  by  the 
witness  or  the  jury,  with  Avritings  admitted  or 
treated  as  genuine  by  the  party  against  whom  the 
evidence  is  offered,  or  proved  to  be  genuine  to  the 
satisfaction  of  the  judge.  [Amendment  approved 
Marcli  24.  1874;  Amendments  1873-4,  380.  In  ef- 
fect July  1,  1874.] 


741  WRITINGS.  §§  1945-1948 

§  1945.  Where  a  writing  is  more  than  thirty- 
years  old,  the  comparisons  may  be  made  with 
writings  purporting  to  be  genuine,  and  generally 
respected  and  acted  upon  as  such,  by  persons  hav- 
ing an  interest  in  knowing  the  fact. 

Presumption— that  ancient  writing  is  genuine; 
Sec.  19G3,  subd.  34. 

vV  §  1946.  The  entries  and  other  writings  of  a  de- 
\  cedent,  made  at  or  near  the  time  of  the  transac- 

^  tion,  and  in  a  position  to  know  the  facts  stated 
,^  therein,  may  be  read  as  prima  facie  evidence  of 
\    the  facts  stated  therein,  in  the  following  cases: 

1.  When  the  entry  was  made  against  the  in- 
terest of  the  person  making  it; 

2.  When  it  was  made  in  a  professional  capacity, 
and  in  the  ordinary  course  of  professional  conduct; 

3.  When  it  was  made  in  the  performance  of  a 
duty  specially  enjoined  by  law.  [Amendment  ap- 
proved ]March  24,  1874:  Amendments  1873-4,  386. 
In  effect  July  1st,  1874.] 

Entries  in  books— repeated:  Sec.  1947;  where  al- 
teration:   Sec.  1982. 

vN     §  1947.    When  an  entry  is  repeated  in  the  reg- 
vk  ular  course  of  business,  one  being  copied  from  an- 
^  other  at  or  near  the  time  of  the  transaction,  all 
^  the  entries  are  equally  regarded  as  originals. 

r  §  1948.  Every  private  writing,  except  last  wills 
and  testaments,  may  be  acknowledged  or  proved 
and  certified  in  the  manner  provided  for  the  ac- 
.  knowledgment  of  proof  of  conveyances  of  real 
property,  and  the  certificate  of  such  acknowledg- 
■  mont  or  proof  is  prima  facie  evidence  of  the  exe- 
cntion  of  the  writing  in  the  same  manner  as  if  it 
were  a  conveyance  of  real  property.  [Amendment 
approved  March  24.  1874;  Amendments  1873-4,  387. 
In  effect  July  1,  1874.] 

Conveyance  of  real  property— as  evidence:  Sec. 
1951. 


§§  1949,  1945       MATERIAL    OBJECTS,    ETC.  742 

§  1949.  [Repealed  March  24,  1874;  Amend- 
ments 1873-4,  387.    In  effect  July  1st,  1874.] 

§  1950.  The  record  of  a  conveyance  of  real 
property,  or  any  other  record,  a  transcript  of  which 
is  admissible  in  evidence,  must  not  be  removed 
from  the  office  where  it  is  kept,  except  upon  the 
order  of  a  court,  in  cases  where  the  inspection  of 
the  record  is  shown  to  be  essential  to  the  just  de- 
termination of  the  cause  or  proceeding  pending, 
or  where  the  court  is  held  in  the  same  building 
with  such  office.  [Amendment  aproved  March  24, 
1874;  Amendments  1873-4,  387.  In  effect  July  1st, 
1874.] 

§  1951.  Every  instrument  conveying  or  affect- 
ing real  property,  acknowledged  or  proved  and  cer- 
tified, as  provided  in  the  Civil  Code,  may,  together 
with  the  certificate  of  aclvuowledgment  or  proof, 
be  read  in  evidence  in  an  action  or  proceeding, 
without  further  proof;  also,  the  original  record  of 
such  conveyance  or  instrument  thus  acknowledg- 
ed or  proved,  or  a  certified  copy  of  the  record  of 
such  conveyance  or  instrument  thus  aclcnowledged 
or  proved,  may  be  read  in  evidence,  with  the  like 
effect  as  the  original  instrument,  without  further 
proof.  [Amendment  approved  ]March  1,  1889; 
Amendments,  1889,  45.    In  effect  March  1,  1889.] 

Certified  copy,  etc:   See  sec.   1948,   ante. 

CHAPTER  IV. 

MATERIAL    OBJECTS    PRESENTED    TO    THE    SENSES, 
OTHER    THAN    WRITINGS. 

§  1954.    Material   objects. 

§  1954.  Whenever  an  object,  cognizable  by  the 
senses,  has  such  a  relation  to  the  fact  in  dispute 
as  to  afford  reasonable  grounds  of  belief  respect- 
ing it,  or  to  make  an  item  in  the  sum  of  the  evl- 


743  INDIRECT    EVIDENCE,    ETC.        §§  1957-1961 

deuce,  such  object  may  be  exhibited  to  the  jury, 
or  its  existeuce,  situatiou,  or  character  may  be 
proved  by  witnesses.  The  admission  of  such  evi- 
dence must  be  regulated  by  the  sound  discretion 
of  the  court. 


CHAPTER  V. 

INDIRECT   EVIDENCE     INFERENCES.    AND   PRESUMP- 
TIONS. 

§  1957.  Indirect   evidence    classified. 

§  1958.  Inference  defined. 

§  19o9.  Presumption  defined. 

§  1960.  When  an  inference  arises. 

§  1961.  Presumptions   may   be   controverted,    when. 

§  1962.  Specification   of   conclusive   presumptions. 

§  1963.  All  other  presumptions  may  be  controverted. 

§  1957.    Indirect  evidence  is  of  two  kinds: 

1.  Inferences;   and, 

2.  Presumptions. 

§  1958.  An  inference  is  a  deduction  which  the 
reason  of  the  jury  makes  from  the  facts  proved, 
without  an  express  direction  of  law  to  that  effect. 

§  1959.  A  presumption  is  a  deduction  which  the 
law  expressly  directs  to  be  made  from  particular 
facts. 

§  1960.    An  inference  must  be  founded— 

1.  On  a  fact  legally  proved;   and. 

2.  On  such  a  deduction  from  that  fact  as  is 
warranted  by  a  consideration  of  the  usual  pro- 
pensities or  passions  of  men,  the  particular  pro- 
pensities or  passions  of  the  person  whose  act  is  in 
question,  the  course  of  business,  or  the  course  of 
nature. 

§  1961.  A  presumption  (unless  declared  by  law 
to  be  conclusive)  may  be  controverted  by  other 
evidence,  direct  or  indirect;  but  unless  so  contro- 


§1962  INDIRECT    EVIDENCE,    ETC.  744 

verted,  the  jury  are  bouud  to  find  according  to 
the  presumption. 

§  1962.  The  following  presumptions,  and  no 
others,  are  deemed  conclusive: 

1.  A  malicious  and  guilty  intent,  from  the  de- 
liberate commission  of  an  unlawful  act,  for  the 
purpose  of  injuring  another. 

2.  The  truth  of  the  facts  recited,  from  the  re- 
cital in  a  written  instrument  between  the  parties 
thereto,  or  their  successors  in  interest  by  a  subse- 
quent title;  but  this  rule  does  not  apply  to  the  re- 
cital of  a  consideration, 

3.  Whenever  a  party  has,  by  his  own  declara- 
tion, act,  or  omission,  intentionally  and  deliberate- 
ly led  another  to  believe  a  particular  thing  true, 
and  to  act  upon  such  belief,  he  cannot,  in  any 
litigation  arising  out  of  such  declaration,  act,  or 
omission,  be  permitted  to  falsify  it. 

4.  A  tenant  is  not  permitted  to  deny  the  title 
of  his  landlord  at  the  time  of  the  commencement 
of  the  relation. 

5.  The  issue  of  a  wife  cohabiting  with  her  hus- 
band, who  is  not  impotent,  is  indisputably  pre- 
sumed to  be  legitimate. 

G.  The  judgment  or  order  of  a  court,  when  de- 
clared by  this  Code  to  be  conclusive;  but  such 
judgment  or  order  must  be  alleged  in  the  plead- 
ings, if  there  be  an  opportunity  to  do  so;  if  there 
be  no  such  opportunity,  the  judgment  or  order 
may  be  used   as   evidence. 

7.  Any  other  presumption  which,  by  statute,  is 
expressly  made  conclusive. 

Subd.  3,  Standing  by,  etc— One  who  willfully 
deceives  another,  with  intent  to  induce  him  to 
alter  his  position  to  his  injury  or  risk,  is  liable 
for  any  damage  which  he  thereby  suffers:  Civ. 
Code,  see.  1709. 

Tenant  denying  landlord's  title:  Civ.  Code,  sec. 
1948. 

Judgments,   etc.:    See.   190S.    Other    estoppels.— 


745  INDIRECT    EVIDENCE,     ETC.  §  1933 

Decree  allowing  executors,  etc.,  accounts:  Sec. 
1638;  evidence  of  notice  on  application  for  letters 
of  administration:  Sec.  1376;  probate:  Sec.  1333; 
conclusive  evidence  generally:    Sec.  1978. 

§  1963.  All  otlier  presumptions  are  satisfac- 
toryy,  if  uncontradicted.  Tiiey  are  denominated 
disputable  presumptions,  and  may  be  controverted 
by  other  evidence.  Tlie  following  are  of  that 
kind. 

1.  That  a  person  is  innocent  of  crime  or  wrong. 

2.  That  an  unlawful  act  was  done  with  an  un- 
lawful intent. 

3.  That  a  person  intends  the  ordinary  conse- 
quence of  his  voluntary  act. 

4.  That  a  person  takes  ordinary  care  of  his  ovim 
concerns. 

5.  That  evidence  willfully  suppressed  would  be 
adverse  if  produced. 

6.  That  higher  evidence  would  be  adverse  from 
inferior  being  produced. 

7.  That  money  paid  by  one  to  another  was  due 
to  the  latter. 

8.  That  a  thing  delivered  by  one  to  another  be- 
longed to  the  latter. 

9.  That  an  obligation  delivered  up  to  the  debtor 
has  been  paid. 

10.  That  former  rent  or  installments  have  been 
paid  when  a  receipt  for  latter  is  produced. 

11.  That  things  which  a  person  possesses  are 
owned  by  him. 

12.  That  a  person  is  tlie  owner  of  property  from 
exercising  acts  of  ownership  over  it,  or  from  com- 
mon reputation  of  his  ownership. 

13.  That  a  person  in  possession  of  an  order  on 
himself  for  the  payment  of  money,  or  the  delivery 
of  a  thing,  has  paid  the  money  or  delivered  the 
thing  accordingly. 

14.  That  a  person  acting  in  a  public  office  was 
regularly  appointed  to  it. 

Code    Civ.    Proc— 63. 


§  1963  INDIRECT    EVIDENCE,    ETC.  746 

15.  That  official  duty  lias  been  regularly  per- 
formed. 

10.  That  a  court  or  judge,  acting  as  such, 
whether  in  this  State  or  any  other  State  or  coun- 
try, was  acting  in  the  lawful  exercise  of  his  jur- 
isdiction. 

17.  That  a  judicial  record,  when  not  conclusive 
does  still  correctly  determine  or  set  forth  the 
rights  of  the  parties. 

18.  That  all  matters  within  an  issue  were  laid 
before  the  jury  and  passed  upon  by  them;  and  in 
lilvC  manner,  that  all  matters  within  a  submission 
to  arbitration  were  laid  before  the  arbitrators  and 
passed  upon  by  them. 

19.  That  private  transactions  have  been  fair 
and  regular. 

20.  That  the  ordinary  course  of  business  has 
been  followed. 

21.  That  a  promissory  note  or  bill  of  exchange 
was  given  or  indorsed  for  a  sufficient  considera- 
tion. 

22.  That  an  indorsement  of  a  negotiable  prom- 
issory note  or  bill  of  exchange  was  made  at  the 
time  and  place  of  making  the  note  or  bill. 

23.  That  a  writing  is  truly  dated. 

24.  That  a  letter  duly  directed  and  mailed  was 
received  in  the  regular  course  of  the  mail. 

2.5.    Identity  of  person  from  identity  of  name. 
2(>.    That  a  person  not  heard  from  in  seven  years 
is  dead, 

27.  That  acquiescence  followed  from  a  belief 
that  the  thing  ac(iuiesced  in  was  conformable  to 
the  right  or  fact, 

28.  That  things  have  happened  according  to  the 
ordinary  course  of  nature  and  the  ordinary  hab- 
its of  life. 

21).    That  persons  acting  as  copartners  have  en- 
tered into  contract  of  copartnership. 
:   30.    That  a  man  and  woman   deporting  them- 
selves as  husband  and  wife  have  entered  Into  a 
lawful  contract  of  marriage. 


747  INDIRECT    EVIDENCE,    ETC.  §1962 

31.  That  a  child  born  in  lawful  wedlock,  there 
being  no  divorce  from  bed  and  board,  is  legiti- 
mate. 

32.  That  a  thing  once  proved  to  exist  continues 
as  long  as  is  usual  with  things  of  that  nature. 

33.  That   the   law   has   been   obeyed. 

34.  Til  at  a  document  or  writing  more  than  thir- 
ty years  old,  is  genuine,  when  the  same  has  been 
since  generally  acted  upon  as  genuine,  by  persons 
having  an  interest  in  the  question,  and  its  cus- 
tody has  been  satisfactorily  explained. 

35.  That  a  printed  and  published  book,  purport- 
ing to  be  printed  or  published  by  public  authority,, 
was  so  printed  or  published. 

36.  That  a  printed  and  published  book,  purport- 
ing to  contain  reports  of  cases  adjudged  in  -the 
tribunals  of  the  State  or  country  where  the  book 
is  publshed,  contains  correct  reports  of  such  caf^es. 

37.  That  a  trustee  or  other  person,  whose  duty 
it  was  to  convey  real  property  to  a  particular  per- 
son, has  actually  conveyed  to  him,  when  such  pre- 
sumption is  necessary  to  perfect  the  title  of  such 
person  or  his  successor  in  interest. 

38.  The  uninterrupted  use  by  the  public  of  land 
for  a  burial  ground,  for  five  j'ears,  with  the  con- 
sent of  the  owner  and  without  a  reservation  of  his 
rights,  is  presumptive  evidence  of  his  intention  to 
dedicate  it  to  the  public  for  that  purpose. 

39.  That  there  was  a  good  and  sufficient  con- 
sideration for  a  written  contract. 

40.  When  two  persons  perish  in  the  same  cal- 
amity, such  as  a  wreck,  a  battle,  or  a  conflagra- 
tion, and  it  is  not  shown  who  died  first,  and  there 
are  no  particular  circumstances  from  which  it 
can  be  inferred,  survivorship  is  presumed  from  the 
probabilities  resulting  from  the  strength,  age,  and 
sex,  according  to  the  following  rules: 

First. — If  both  of  those  who  have  perished  were 
under  the  age  of  fifteen  years,  the  older  is  pre- 
sumed to  have  survived, 


§  1063  INDIRECT    EVIDENCE,     ETC.  748 

Second. — If  both  were  above  the  age  of  sixty,  the 
younger  is  presumed  to  have  survived. 

Third.— If  one  be  under  fifteen  and  the  other 
above  sixty,  the  former  is  presumed  to  have  sur- 
vived. 

Fourtli.— If  both  be  over  fifteen  and  under  sixty, 
and  the  sexes  be  different,  the  male  is  presumed  to 
have  survived.  If  the  sexes  be  the  same,  then  the 
older. 

Fifth. — If  one  be  under  fifteen  or  over  sixty,  and 
the  other  between  those  ages,  the  latter  is  pre- 
sumed to  have  survived. 

Subds.  17,  18.  Proceedings  of  courts:  Sec.  87, 
and  notes,  and  sec.  1908;  on  estoppels  by  judg- 
ment: Parnell  v.  Hahn,  61  Cal.  131. 

Subd.  20.  Ordinary  course  of  business  has  been 
followed:  Sec.  1960. 

Subd.  21.  Note  or  bill  imports  a  consideration.— 
A  written  instrument  is  presumptive  evidence  of 
a  consideration:  Civ.  Code,  sec.  1614.  The  burden 
of  showing  a  want  of  consideration  sufficient  to 
support  an  instrument  lies  with  the  party  seeking 
to  invalidate  or  avoid  it:  Civ.  Code,  sec.  1615:  Mc- 
Cann  v.  Lewis,  9  Cal.  247;  McCarty  v.  Beach,  10 
Id.  463;  Winters  v.  Rush,  34  Id.  138;  and  see  subd. 
39  of  this  section. 

Legitimacy:     See  Civ.  Code,  sec.  193. 

Other  presumptions.  —  Transcript  of  shorthand 
notes  is  prima  facie  evidence:  Sec.  270,  ante;  order 
of  probate  court  for  disclosure  of  property  of  es- 
tate: Sec.  1460,  ante;  conveyance  executed  by 
executor,  etc:  Sec.  1601,  ante.  On  sales  of  stock 
for  delinquent  assessments,  the  Civil  Code,  sec- 
tion 348,  provides:  The  publication  of  notice  re- 
quired by  this  article  may  be  proved  by  the  affi- 
davit of  the  printer,  foreman,  or  principal  clerk  of 
the  newspaper  in  which  the  same  was  published; 
and  the  affidavit  of  the  secretary  or  auctioneer  is 
prima  facie  evidence  of  the  time  and  i>lace  of  sale, 
of  tlio  quantity  and  particular  description  of  the 
stock  sold,  and  to  whom,  and  for  what  price,  and 


749  INDIRECT    EVIDENCE,     ETC.  §  1963 

of  the  fact  of  the  purchase  money  being-  paid.  The 
attidavits  must  be  filed  in  the  otlice  of  tlie  corpora- 
tion, and  copies  of  the  same  certified  by  the  secre- 
tary tliereof,  are  prima  facie  evidence  of  the  facts 
therein  stated.  Certificates  signed  by  the  secre- 
tary, and  under  the  seal  of  the  corporation,  are 
prima  facie  evidence  of  the  contents  thereof. 

Copies  of  the  entries  of  a  county  clerk,  when 
certified  by  him,  and  affidavits  of  publication  made 
by  the  printer,  publisher,  or  chief  cleric  of  a  news- 
paper, under  sections  24GG-2471  of  the  Civil  Code, 
relating  to  the  use  of  fictitious  names  in  partner- 
ships, are  presumptive  evidence  of  the  facts  there- 
in stated:    See  note  42G. 

An  affidavit  of  the  making  of  the  publication  of 
the  certificate  of  a  special  partnership,  or  its  sub- 
stance under  sections  2477-2485  of  the  Civil  Code, 
made  by  the  printer,  publisher,  or  the  chief  clerk 
of  the  newspaper  in  which  such  publication  is 
made,  may  be  filed  with  the  county  recorder  with 
whom  the  original  certificate  was  filed,  and  is  pre- 
sumptive evidence  of  the  facts  therein  stated:  Civ. 
Code,  sec.  2484. 

The  protest  of  a  notary,  under  his  hand  and  of- 
ficial seal,  of  a  bill  of  exchange  or  promissorj-  note 
for  non-acceptance  or  non-payment,  stating  the 
presentment  for  acceptance  or  payment,  and  the 
non-acceptance  or  non-payment  thereof,  the  serv- 
ice of  notice  on  any  or  all  the  parties  to  such  bill 
of  exchange  or  promissory  note,  and  specifying 
the  mode  of  giving  sucli  notice,  and  the  reputed 
place  of  residence  of  the  party  to  such  bill  of  ex- 
change or  promissory  note,  and  of  the  party  to 
whom  the  same  was  given,  and  the  postoffice  near- 
est thereto,  is  prima  facie  evidence  of  the  facts 
contained  therein:   Polit.  Code,  sec.  795. 

All  fines  and  penalties  for  non-attendance  upon 
drills,  parades,  and  inspections  of  the  national 
guard,  legally  determined  and  imposed  under  the 
provisions  of  such  rules  and  by-laws,  may  be  col- 
lected by  action  in  justice's  court,  in  the  name  of 


S§  1867-1968       INDISPENSABLE    EVIDENCE.  750 

the  people  of  the  State  of  California;  and  the 
boolis  and  records  of  regiments,  battalions,  and 
companies,  and  the  proceedings  under  which  de- 
linquents are  fined,  are  prima  facie  evidence  of 
the  facts  therein  stated:    Polit.  Code,  sec.  1935. 

The  secretary  of  the  fire  department,  or  fire  com- 
pany, must  keep  a  record  of  all  certificates  of  ex- 
emption or  active  membership,  the  date  thereof 
^nd  to  whom  issued;  and  when  no  seal  is  pro- 
vided, similar  entries  of  certificates  issued  to  ob- 
tain county  clerks'  certificates.  Every  such  cer- 
tificate is  prima  facie  evidence  of  the  facts  there- 
in stated:    Polit.  Code,  sec.  3341. 

All  surveys  and  maps  of  boundary  lines  here- 
tofore legally  made  and  approved  are  declared 
valid,  and  they  are  prima  facie  evidence  of  the 
establishment  of  such  lines,  except  so  far  as  they 
are  inconsistent  with  the  provisions  of  this  code: 
Polit.  Code,  sec.  3973. 

CHAPTER  YI. 

INDISPENSABLE  EVIDENCE, 
f  1967.    Indispensable    evidence,    what. 
§  1938.    To   prove   usage,    perjury,    and   treason,    more   than 

one  witness  required. 
§  1969.  Will  to  be  in  writing. 
§  1970.    How    revoked. 

§  1971.    Transfer  of  real   property  to  be   in   writing. 
§  1972.    Last  section  not  to  extend  to  certain  cases. 
§  1973.    Agreement  not  in  writing,   when   invalid. 
§  1974.    Representation  of  credit  by  writing. 

§  1967.  The  law  makes  certain  evidence  nec- 
essary to  the  validity  of  particular  acts,  or  the 
proof  of  particular  facts. 

§  1968.  Perjury  and  treason  must  be  proved  by 
testimony  of  more  than  one  witness.  Treason  by 
the  testimony  of  two  witnesses  to  the  same  overt 
act;  and  perjury  by  the  testimony  of  two  wit- 
nesses, or  one  witness  and  corroborating  circum- 
stances. 

Two  witnesses— for  probate  of  lost  will:  Sec, 
1339. 


751  INDISPENSABLE    EVIDENCE.        §§  1969-1972 

§  1969.  A  last  will  and  testament,  except  a 
nuncupative  will,  is  invalid,  unless  it  be  in  writing 
and  executed  with  such  formalities  as  are  required 
by  law.  When,  therefore,  such  a  will  is  to  be 
shown,  the  instrument  itself  must  be  produced,  or 
secondary  evidence  of  its  contents  be  given. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  388.    In  effect  July  1st,  1874.] 

Lost  or  destroyed  will— probate  of:  Sees.  1338- 
1341. 

§  1970.  A  written  will  cannot  be  revoked  or  al- 
tered otherAvise  than  as  provided  in  the  Civil  Code. 
[Amendment  approved  March  24,  1874;  Amend- 
ments 1873-4,  388.    In  effect  July  1st,  1874.] 

Ilevocation  or  alteration  of  will:  See  Civil  Code, 
sec.  1292  et  seq. 

§  1971.  No  estate  or  interest  in  real  property, 
\_  Other  than  for  leases  for  a  term  not  exceeding  one 
-/year,  nor  any  trust  or  power  over  or  concerning  it, 
^"or  in  any  manner  relating  thereto,  can  be  created- 
^  granted,  assigned,  surrendered,  or  declared,  other- 
^  wise  than  by  operation  of  law,  or  a  conveyance, 
%.or  other  instrument  in  writing,  subscribed  by  the 
.■O  party  creating,  granting,  assigning,  surrendering, 
<  or  declaring  the  same,  or  by  his  lawful  agent 
thereunto  authorized  by  writing. 

Scope  of  section— application  restricted  by  Sec. 
1972. 

Corresponding  provision:    Civil  Code,  sec.  1091. 

Real  property — estate,  interest,  etc.,  in,  compare 
sec.  1973,  subd.  5. 

Trust— Civil  Code:    Sec.  852. 

Grant,  etc.:    Civ.  Code,  sec.  1053. 

§  1972.    The  preceding  section  must  not  be  con- 
strued to  affect  the  power  of  a  testator  in  the  dis- 
,  position  of  his  real  property  by  n  last  will  and  te&- 
V    itament,  nor  to  prevent  any  trust  from  arising  or 
■Cl.  being  extinguished  by  implication  or  operation  of 


§  1973  INDISPENSABLE    EVIDENCE.  752 

law,  fior  to  abridge  the  power  of  auy  court  to  coeq- 
pel  the  specific  performance  of  an  agreement,  in 
case  of  part  performance  thereof. 

Specific  performance:  See  Civ.  Code,  sec.  3384 
et  seq. 

§  1973.  In  the  following  cases  the  agreement  is 
invalid,  unless  the  same  or  some  note  or  memor- 
andum thereof  be  in  writing,  and  subscribed  by 
the  party  charged,  or  by  his  agent;  evidence,  there- 
fore, of  the  agreement,  cannot  be  received  without 
the  writing  or  secondary  evidence  of  its  contents: 

1.  An  agreement  that  by  its  terms  is  not  to  be 
performed  within  a  year  from  the  making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another,  except  in  the 
cases  provided  for  in  section  twenty-seven  hun- 
dred and  ninety-four  of  the  Civil  Code; 

3.  An  agreement  made  upon  consideration  of 
marriage,  other  than  a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels, 
or  things  in  action,  at  a  price  not  less  than  two 
hundred  dollars,  unless  the  buyer  accept  and  re- 
ceive part  of  such  goods  and  chattels,  or  the  evi- 
dences, or  some  of  them,  of  such  things  in  action, 
or  pay  at  the  time  some  part  of  the  purchase- 
money;  but  when-  a  sale  is  made  by  auction,  an 
entry  by  the  auctioneer  in  his  sale-book,  at  the 
time  of  the  sale,  of  the  kind  of  property  sold,  the 
terms  of  sale,  the  price,  and  the  names  of  the  pur- 
chaser and  person  on  whose  account  the  sale  is 
made,  is  a  sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer 
period  than  one  year,  or  for  the  sale  of  real  prop- 
erty, or  of  an  interest  therein,  and  such  agree- 
ment, if  made  by  an  agent  of  the  party  sought  to 
be  charged,  is  invalid,  unless  the  authority  of  the 
agent  be  in  writing,  subscribed  by  the  party 
sought  to  be  charged. 

Corresponding  provision:  Civil  Code,  sec.  1624. 


753  CONCLUSIVE    EVIDENCE.  §§  1974,  1978 

Note  or  memorandum— by  auctioneer:  Sec.  1973, 
subd.  4.  , 

Correspondins:  provision;  Civil  Code,  sec.  2793: 
exception:  Civil  Code,  sec.  2794;  executor  by:  Sec. 
1G12. 

Agreement  for  sale  of  goods,  etc.— auction  sale, 
entry  of:  Civil  Code,  sec.  1798;  Political  Code,  sec. 
3292;  corresponding  provision:  Civil  Code,  sec. 
1739,  and  see  Civil  Code,  sec.  1740. 

Parol  evidence,  when  admissible  to  explain  writ- 
ing:  Sec.  1856,  ante. 

§  1974.  No  evidence  is  admissible  to  charge  a 
person  upon  a  representation  as  to  the  credit  of  a 
third  person,  unless  such  representation,  or  some 
memorandum  thereof,  be  in  writing,  and  either 
y  subscribed  by,  or  in  the  handwriting  of,  the  party 
to  be  charged. 


CHAPTER  VII. 

CONCLUSIVE    OR   UNANSWERABLE   EVIDENCE. 

§  1978.    Conclusive  or  unanswerable  evidence. 

5  1978.    No  evidence  is  by  law  made  conclusive 
or  unanswerable,  unless  so  declared  by  this  Code. 
Estoppel:    Sees.  1908,  1962. 


§§  1981,  1982         MEANS    OF    PRODUCTION-  754 

TITLE   III. 
OF  THE  PRODUCTION  OF  EVIDENCE. 

Chapter  I.    By  whom   to   be   produced.    §§    1981- 
1982. 
II.    Means  of  production.    §§  1985-1997. 
III.     Manner  of  production.    §§  2002-2054. 

CHAPTER  I. 

BY  WHOM  TO  BE   PRODUCED. 

$  1981.    Evidence  to  be  produced,  by  whom. 
§  1982.    Writing  altered,  who  to  explain. 

§  1981.  The  party  holding  the  affirmative  of 
the  issue  must  produce  the  evidence  to  prove  it; 
therefore,  the  burden  of  proof  lies  on  the  party 
who  would  be  defeated  if  no  evidence  were  given 
on  either  side. 

Burden  of  proof:  Sec.  1869. 

§  1982.  The  party  producing  a  writing  as  gen- 
uine which  has  been  altered,  or  appears  to  have 
been  altered,  after  its  execution,  in  a  part  mate- 
rial to  the  question  in  dispute,  must  account  for 
the  appearance  or  alteration.  He  may  show  that 
the  alteration  was  made  by  another,  without  his 
concurrence,  or  was  made  with  the  consent  of 
the  parties  affected  by  it,  or  otherwise  properly  or 
innocently  made,  or  that  the  alteration  did  not 
change  the  meaning  or  language  of  the  instru- 
ment. If  he  do  that,  he  may  give  the  writing  In 
evidence,  but  not  otherwise. 

Printed  form— erasure  in:  32  Cal.  88;  construc- 
tion of:  Sec.  1862, 


755  MEANS    OF    PRODUCTION.  §§  19S5, 1986 

CHAPTER  II. 

MEANS    OP   PRODUCTION. 

§  1985.  Subpoena  for  witness  defined. 

§  19S6.  Subpoena,  bow  issued. 

§  19S7.  Subpoena,    bow   served. 

§  1988.  How,   if  witness  be  concealed. 

§  1989.  When  a  witness  Is  compelled  to  attend. 

§  1990.  Person  present  compelled  to  testify. 

§  1991.  Disobedience,    bow   punisbed. 

§  1992.  Forfeiture    therefor. 

§  1993.  Warrant   may   issue   to  bring  witness,   when. 

§  1994.  Contents  of  warrant. 

I  1995.  If  witness  be  a  prisoner,  how  brought. 

§  1996.  On  whose  motion. 

§  1997.  How   examined. 

§  1985.  The  process  by  which  the  attendance  of 
a  witness  is  required  is  a  subpoena.  It  is  a  writ 
or  order  directed  to  a  person  and  requiring  his  at- 
tendance at  a  particular  time  and  place  to  testify- 
as  a  witness.  It  may  also  require  him  to  bring 
with  him  any  books,  documents,  or  other  things 
under  his  control,  which  he  is  bound  by  law  to  pro- 
duce in  evidence. 

§   1986.    The  subpoena  is  issued  as  follows: 

1.  To  require  attendance  before  a  court,  or  at 
the  trial  of  an  issue  therein,  it  is  issued  under  the 
seal  of  the  court  before  which  the  attendance  is 
required,  or  in  which  the  issue  is  pending; 

2.  To  require  attendance  out  of  the  court,  before 
^  a  .iudge,  justice,  or  other  officer  authorized  to  ad- 
^  minister  oaths  or  talvc  testimony  in  any  matter 
^  under  the  laws  of  this  State,  it  is  issued  by  the 
-  judge,  justice,  or  any  other  officer  before  whom 
"-    the  attendance  is  required; 

3.  To  require  attendance  before  a  commissioner 
appointed  to  take  testimony  by  a  court  of  a  foreign 

y  country,  or  of  the  United  States,  or  of  any  other 
v^  State  in  the  United  States,  or  of  any  other  dis- 
trict   or    county    within    this    State,    or    before 
any  officer  or  officers  empowered  by  the  laws  of 


I  1987-1939  MEANS  OF  PRODUCTION.  756 

the  United  States  to  take  testimony,  it  may  be  is- 
sued by  any  judge  or  justice  of  tlie  peace  in  places 
witliin  their  respective  jurisdiction;  with  lilie  pow- 
er to  enforce  attendance,  and,  upon  certificate  of 
contumacy  to  said  court,  to  punish  contempt  of 
their  process,  as  such  judge  or  justice  could  exer- 
cise if  the  subpoena  directed  the  attendance  of 
the  witness  before  their  courts  in  a  matter  pending 
therein. 

§  1987.  The  service  of  a  subpoena  is  made  by 
showing  the  original  and  delivering  a  copy,  or  a 
ticliet  containing  its  substance,  to  the  witness 
personally,  giving  or  ofteriug  to  him  at  the  same 
time,  if  demanded  by  him,  the  fees  to  which  he 
is  entitled  for  travel  to  and  from  the  place  desig- 
nated, and  one  day's  attendance  there.  The  serv- 
ice must  be  made  so  as  to  allow  the  witness  a  rea- 
sonable time  for  preparation  and  travel  to  the 
place  of  attendance.  Such  service  may  be  made 
by  any  person. 

Costs  where  subpoena  served  by  person  other 
than  sheriff:  See  post,  Appendix,  p.  770. 

§  1988.  If  a  witness  is  concealed  in  a  building 
or  vessel,  so  as  to  prevent  the  service  of  a  sub- 
poena upon  him,  any  court  or  judge,  or  any  officer 
issuing  a  subpoena,  may,  upon  proof  by  affidavit 
of  the  concealment,  and  of  the  materiality  of  the 
witness,  make  an  order  that  the  sheriff  of  the 
county  serve  the  subpoena;  and  the  sheriff  must 
serve  it  accordingly,  and  for  that  purpose  may 
brealv  into  the  building  or  vessel  where  the  wit- 
ness is  concealed. 

§  1989.  A  witness  is  not  obliged  to  attend  as 
a  witness  before  any  court,  judge,  justice,  or  any 
other  officer,  out  of  the  county  in  which  he  resides, 
unless  the  distance  be  less  than  thirty  miles  from 
his  place  of  residence  to  the  place  of  trial. 


757  MEANS  OF  PRODUCTIOX.  g?  1990-1994 

§  1990.  A  person  present  in  court,  or  before  a 
judicial  officer,  may  be  required  to  testify  in  ttie 
same  manner  as  if  be  were  in  attendance  upon  a 
subpoena  issued  by  such  court  or  officer. 

§  1991.  Disobedience  to  a  subpoena,  or  a  re- 
fusal to  be  SAVorn,  or  to  answer  as  a  witness,  or 
to  subscribe  an  affidavit  or  deposition  when  re- 
quired, may  be  punished  as  a  contempt  by  the 
court  or  officer  issuing  the  subpoena  or  requiring 
the  witness  to  be  sworn;  and  if  the  witness  be  a 
party,  his  complaint  or  answer  may  be  stricken 
out. 

Refusal  to  answer:    Sec.  2065. 

Contempt:    Sees.  1209,  1219. 

§  1993.  A  witness  disobeying  a  subpoena  also 
forfeits  to  the  party  aggrieved  the  sum  of  one 
hundred  dollars,  and  all  damages  which  he  may 
sustain  by  the  failure  of  the  witness  to  attend, 
which  forfeiture  and  damages  may  be  recovered 
in  a  civil  action. 

§  1993.  In  case  of  failure  of  a  witness  to  at- 
tend, the  court  or  officer  issuing  the  subpoena, 
upon  proof  of  the  service  thereof,  and  of  the  fail- 
ure of  the  witness,  may  issue  a  warrant  to  the 
sheriff  of  the  county  to  arrest  the  witness  and 
bring  him  before  the  court  or  officer  where  his  at- 
tendance was  required. 

§  1994.  Every  warrant  of  commitment,  issued 
by  a  court  or  officer  pursuant  to  this  chapter,  must 
specify  therein,  particularly,  the  cause  of  the  com- 
mitment, and  if  it  be  for  refusing  to  answer  a 
question,  such  question  must  be  stated  in  the  war- 
rant. And  every  warrant  to  arrest  or  commit  a 
witness,  pursuant  to  this  chapter,  must  be  direct- 
ed to  the  sheriff  of  the  county  where  the  witness 
jmay  be,  and  must  be  executed  by  him  in  the  same 
manner  as  process  issued  by  the  Superior  Court. 

Code  Civ.  rroc— 34, 


§§  1995-1907  MEANS    OF    PRODUCTION.  758 

[Amendment    approved    April    10,    1880;  Amend- 
ments 1880,  114.    In  effect  April  IGth,  1880.] 

§  1995.  If  the  witness  be  a  prisoner,  confined 
in  a  jail  or  prison  witliin  tliis  State,  an  order  for 
liis  examination  in  tiie  prison  upon  deposition,  or 
for  bis  temporary  removal  and  production  before 
a  court  of  officer,  for  the  purpose  of  being  orally- 
examined,  may  be  made  as  follows: 

1.  By  the  court  itself  in  which  the  action  or 
special  proceeding  is  pending,  unless  it  be  a  Jus- 
tice's Court; 

2.  By  a  justice  of  the  Supreme  Court,  or  a  judge 
of  the  Superior  Court  of  the  county  where  the  ac- 
tion or  proceeding  is  pending,  if  pending  before  a 
Justice's  Court,  or  before  a  judge  or  other  person 
out  of  court.  [Amendment  approved  April  16, 
1880;  Amendments  1880,  115.  In  effect  April  16th, 
1880.] 

§  1996.  Such  order  can  only  be  made  on  the 
motion  of  a  party,  upon  affidavit  showing  the  na- 
ture of  the  action  or  proceeding,  the  testimony  ex- 
pected from  the  witness,  and  its  materiality. 

§  1997.  If  the  witness  be  imprisoned  in  the 
county  where  the  action  or  proceeding  is  pending, 
his  production  may  be  required.  In  all  other  cases 
his  examination,  when  allowed,  must  be  taken 
upon  deposition. 


759  MANNER   OF   PRODUCTION.         §§  2002-2005 

CHAPTER  III. 

MANNER  OF  PRODUCTION. 

Article  I.  Mode  of  Taking  the  Testimony  of  Witnesses. 

II.  Affidavits. 

III.  Depositions. 

IV.  Manner  of  Taking   Depositions  out  of  the   State. 
V.  Manner  of  Taking  Depositions  in  the  State. 

VI.    General  Rules  of  Examination. 

ARTICLE    I. 

MODE   OF  TAKING  THE   TESTIMONY   OF  WITNESSES. 

§  2002.  Testimony,   in  what  mode  taken. 

§  2003.  Affidavit  defined. 

§  2004.  A  deposition  defined. 

§  2005.  Oral    examination    defined. 

§  2006.  Deposition,  how  taken. 

§  2002.  The  testimony  of  witnesses  is  talven  in 
three  modes: 

1.  By  affidavit; 

2.  By  deposition; 

3.  By  oral  examination. 

§  2003.  An  affidavit  is  a  written  declaration 
under  oath,  made  without  notice  to  the  adverse 
party. 

Affidavits:  Sec.  2009  et  seq. 

§  2004.  A  deposition  is  a  written  declaration 
under  oath,  made  upon  notice  to  tlie  adverse  party 
for  the  purpose  of  enablinc^  him  to  attend  and 
cross-examine. 

Depositions:  Sees.  2019-2021;  form  of:  See.  2006. 

§  2005.  An  oral  examination  is  an  examination 
in  presence  of  tlie  jury  or  tribunal  whicli  is  to  de- 
cide the  fact  or  act  upon  it.  the  testimony  being 


§§  2006,  2010    MANNER    OP    PRODUCTION.  760 

heard  by  the  jury  or  tribimal  from  the  lips  of  the 
witness. 

General  rules  of  examination:    Sees.  2042-2054. 

§  2006.  Depositions  must  be  taken  in  the  form 
of  question  and  answer,  and  the  words  of  the  wit- 
ness must  be  written  down,  unless  the  parties 
agree  to  a  different  mode. 


ARTICLE  II. 

AFFIDAVITS. 

§  2009.    Affidavits  and  depositions,  how  taken. 

§  2010.    Evidence  of  publication,   what. 

§  2011.    Where   filed. 

§  2012.  Affidavits  to  be  used  in  this  State,  before  whom 
may  be  taken  in  this  State. 

§  2013.  If  made  in  another  State  of  the  United  States,  be- 
fore  whom  taken. 

§  2014.    If  made  in  a  foreign  country,  before  whom  taken, 

§  2015.  Certificate  of  the  clerk,  if  taken  before  a  judge  of 
a  court  out  of  this  State. 

§  2009.  An  afhdavit  may  be  used  to  verify  a 
pleading  or  a  paper  in  a  special  proceeding,  to 
prove  the  service  of  a  summons,  notice,  or  other 
paper  in  an  action  or  special  proceeding,  to  obtain 
a  provisional  remedy,  the  examination  of  a  wit- 
ness, or  a  stay  of  proceedings,  or  upon  a  motion, 
and  in  any  other  case  expressly  permitted  by  some 
other  provision  of  this  Code. 

Affidavit:  See  sees.  2010,  2011. 

§  2010.  Evidence  of  the  publication  of  a  docu- 
ment or  notice  required  by  law,  or  by  an  order  of 
a  court  or  .iudge  to  be  published  in  a  newspaper, 
may  be  given  by  the  affidavit  of  the  printer  of  the 
newspaper,  or  his  foreman  or  principal  clerk,  an- 
nexed to  a  copy  of  the  document  or  notice,  speci- 
fying tlie  times  when  and  the  paper  in  which  the 
pul)lication  was  made. 

Affidavit  of  publication:  See  sec.  413. 


761  MANNER    OF    PRODUCTION.         §§  2011-2015 

§  2011.  If  such  affidavit  be  made  in  an  action 
or  special  proceeding  pending  in  a  court,  it  may  be 
filed  TV'ith  the  court  or  a  clerli  thereof.  If  not  so 
made,  it  may  be  filed  with  the  cleric  of  the  county 
where  the  newspaper  is  printed.  In  either  case, 
the  original  affidavit,  or  a  copy  thereof,  certified  by 
the  judge  of  the  court  or  cleric  having  it  in  cus- 
tody, is  prima  facie  evidence  of  the  facts  stated 
therein.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  388.  In  effect  July  1, 
1874.] 

§  2012.  An  affidavit  to  be  used  before  any 
court,  judge,  or  officer  of  this  State,  may  be  tak- 
en before  any  judge  or  clerk  of  any  court,  or  any 
justice  of  the  peace  or  notary  public  in  this  State. 

Persons  authorized  to  take  affidavits:  Sec.  179, 
subd.  3. 

§  2013.  An  affidavit  taken  in  another  State  of 
the  United  States,  to  be  used  in  this  State,  may  be 
taken  before  a  commissioner  appointed  hy  the 
governor  of  this  State  to  take  affidavits  and  depo- 
sitions in  such  other  State,  or  before  any  notary 
public  in  another  State,  or  before  any  judge  or 
clerk  of  a  court  of  record  having  a  seal.  [Amend- 
ment approved  March  24,  1874;  Amendments 
1873-4,  p.  389.     In  effect  July  1,  1874.] 

§  2014.  An  affidavit  taken  in  a  foreign  country 
to  be  used  in  this  State,  must  be  taken  before  an 
embassador,  minister,  consul,  vice-consul,  or  con- 
sular agent  of  the  United  States,  or  before  any 
judge  of  a  court  of  record  having  a  seal,  in  such 
foreign  country.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  389.  In  effect 
July  1,  1874.] 

§  2015.  When  an  affidavit  is  taken  before  a 
judge  of  a  court  in  another  State,  or  in  a  foreign 
country,  the  genuineness  of  the  signature  of  the 


§§  2019-2021        MANNER    OF    PRODUCTION.  762 

judge,  the  existence  of  the  court  and  the  fact 
that  such  judge  is  a  member  thereof,  must  be 
certified  by  the  clerk  of  the  court,  under  the  seal 
thereof. 

ARTICLE  III. 

DEPOSITIONS. 

§  2019.     Deposition,   when  used. 

§  2020.    Testimony    of    a    witness    out   of    the    State,    when 

taken. 
§  2021.    In  the  State,   when  taken. 

§  2019.  In  all  cases  other  than  those 
mentioned  in  section  two  thousand  and  nine, 
where  a  written  declaration  under  oath  is  used,  it 
must  be  a  deposition  as  prescribed  by  this  Code. 

§  2020.  The  testimony  of  a  witness  out  of  the 
State  may  be  tal^en  by  deposition,  in  an  action,  at 
any  time  after  the  service  of  the  summons  or  the 
appearance  of  the  defendant;  and,  in  a  special  pro- 
ceeding, at  any  time  after  a  question  of  fact  has 
arisen  therein. 

Manner  of  taking  depositions  out  of  the  State: 
Sec.  2024  et  seq. 

§  2021.  The  testimony  of  a  witness  in  this 
State  may  be  taken  by  deposition  in  an  action 
at  any  time  after  the  service  of  the  summons  or 
the  appearance  of  the  defendant,  and  in  a  spe- 
cial proceeding  after  a  question  of  fact  has  aris- 
en therein,  in  the  following  cases: 

1.  When  the  witness  is  a  party  to  the  action  or 
proceeding,  or  an  otRcer  or  member  of  a  corpora- 
tion which  is  a  party  to  the  action  or  proceeding, 
or  a  person  for  whose  immediate  benefit  the  ac- 
tion or  proceeding  is  prosecuted  or  defended. 

2.  When  the  witness  resides  out  of  the  county 
in  which  his  testimony  is  to  be  used. 

.■'>.  When  the  witness  is  about  to  leave  the  coun- 
ty where  the  action  is  to  be  tried,  and  will  prob- 


763  MANNER   OF   PRODUCTION.  §  2024 

ably  continue  absent  when  the  testimony  is  re- 
quired. 

4.  When  the  witness,  otherwise  liable  to  attend 
the  trial,  is  nevertheless  too  infirm  to  attend. 

5.  When  the  testimony  is  required  upon  a  mo- 
tion, or  in  any  other  case  where  the  oral  examin- 
ation of  the  witness  is  not  required. 

6.  When  the  witness  is  the  only  one  who  can 
establish  facts  or  a  fact  material  to  the  issue; 
provided,  that  the  deposition  of  such  witness 
shall  not  be  used  if  his  presence  can  be  procured 
at  the  time  of  the  trial  of  the  cause.  [Amendment 
approved  March  9,  1878;  Amendments  1877-8,  p. 
112.    In  effect  sixty  days  after  passage.] 

Deposition:  Mode  of  tailing,  sec.  2006;  who  may 
take,  sec.  179,  subd.  3;  in  this  State,  manner  of 
taking,  sec.  2031  et  seq. 


ARTICLE  IV. 

MANNER    OF     TAKING     DEPOSITIONS    OUT    OF     THE 
STATE. 

§  2024.  Testimony  of  witness  out  of  State  taken  upon  com- 
mission issued  under  seal, upon  notice.  To  whom 
issue. 

§  2025.  Proper  interrogatories  may  be  prepared,  or  may  be 
waived  by  the  parties. 

§  2026.    Authorities   and   duties   of   commissioner. 

§  2027.  Trial,  when  postponed  for  reason  of  nonreturn  of 
commission. 

§  2028.    Depositions,  by  whom  used. 

§  2024.  The  deposition  of  a  witness  out  of 
this  state  may  be  taken  upon  a  commission  issued 
from  the  court  under  the  seal  of  the  court,  upon 
an  order  of  the  court  or  a  judge  or  a  justice  there- 
of, on  the  application  of  either  party,  upon  five 
days'  previous  notice  to  the  other.  If  the  court 
be  a  justice's  court,  the  commission  shall  have  at- 
tached to  it  a  certificate,  under  seal  by  the  coun- 
ty clerk   of  such   county,   to  the  effect  that   the 


§§  2025-2027        MANNER     OF    PRODUCTION.  764 

person  issuing  the  same  was  an  acting  justice  of 
the  peace  at  the  date  of  the  commission.  If  is- 
sued to  any  place  within  the  United  States,  it  may- 
be directed  to  a  person  agreed  upon  by  the  par- 
ties, or  if  they  do  not  agree,  to  any  judge  or  jus- 
tice of  the  peace  or  commissioner  selected  by  the 
court  or  judge  or  justice  issuing  it.  If  issued  to 
any  country  out  of  the  United  States,  it  may  be 
directed  to  a  minister,  embassador,  consul,  vice 
consul,  or  consular  agent  of  the  United  States  in 
such  country,  or  to  any  person  agreed  upon  by 
the  parties.  [Amendment  approved  March  10, 
1891;  Stats.  1891,  p.  51;  in  effect  immediately.] 

§  2025.  Such  proper  interrogatories,  direct 
and  cross,  as  the  respective  parties  may  prepare 
to  be  settled  if  the  parties  disagree  as  to  their 
form,  by  the  judge  or  officer  granting  the  order 
for  the  commission,  at  a  day  fixed  in  the  order, 
may  be  annexed  to  the  commission;  or,  when  the 
parties  agree  to  that  mode,  the  examination  may 
be  without  written  interrogatories. 

Interrogatories— question  and  answer  in  deposi- 
tions: Sec.  2000. 

§  2026.  The  commission  must  authorize  the 
commissioner  to  administer  an  oath  to  the  witness, 
and  to  take  his  deposition  in  answer  to  the  inter- 
rogatories, or  when  the  examination  is  to  be 
without  interrogatories,  in  respect  to  the  question 
in  dispute,  and  to  certify  the  deposition  to  the 
court,  in  a  sealed  envelope,  directed  to  the  clerk 
or  other  person  designated  or  agreed  upon,  and 
forwarded  to  him  by  mail  or  other  usual  chan- 
nel of  conveyance. 

Certificate:  Sec.  2032. 

§  2027.  A  trial  or  other  proceeding  must  not 
be  postponed  by  reason  of  a  commission  not  re- 
turned, except  upon  evidence,  satisfactory  to  the 


765  MANNER    OF    PRODUCTION.        §§  2028,  2031 

court,  that  the  testimony  of  the  witness  is  neces- 
sary, and  that  proper  diligence  has  been  used  to 
obtain  it. 

§  2028.  The  deposition  mentioned  in  this  ar- 
ticle may  be  used  by  either  party  on  the  trial  of 
other  proceeding  against  any  other  party  giving 
or  receiving  the  notice,  subject  to  all  just  excep- 
tions. 

Compare  with  sec.  2034,  post. 


ARTICLE  V. 

MANNER   OF  TAKING   DEPOSITIONS   IN   THIS   STATE. 

5  2031.    Depositions  may  be  taken  before  a  judge,  etc.,  upon 

notice  to  the  adverse  party. 
§  2032.     Manner    of    taking    depositions.     May    be    used    by 

either  party  on  the  trial. 
§  20^3.    When   deposition   excluded. 

§  20.''.4.    A  deposition  once  taken  may  be  read  at  any  ttme. 
§  2035.     Deposition  in  this  State  to  be  used  in  other  States. 
§  2033.    How  to  procure  witness  upon  commission. 
§  2037.     How,    if   no    commission. 
§  2038.     Deposition,  how  taken. 

§  2031.  Either  party  may  have  the  deposition 
taken  of  a  witness  in  this  State,  in  either  of  the 
cases  mentioned  in  section  two  thousand  and 
twenty-one,  before  a  judge  or  officer  authorized  to 
administer  oaths,  on  serving  upon  the  adverse 
party  previous  notice  of  the  time  and  place  of  ex- 
amination, together  with  a  copy  of  an  affidavit, 
showing  that  the  case  is  witliin  that  section. 
Such  notice  must  be  at  least  five  days,  adding  al- 
so one  day  for  every  twenty-five  miles  of  the  dis- 
tance of  the  place  of  examination  from  tlie  res- 
idence of  the  person  to  whom  the  notice  is  given, 
unless,  for  a  cause  shown,  a  judge,  by  order,  pre- 
scribed a  shorter  time.     When  a  shorter  time  is 


§§  2032,  2033       MANNER    OF   PRODUCTION.  706 

prescribed,  a  copy  of  the  order  must  be  served 
with  the  notice. 

Subpoena  issuing  to  take  testimony  before  no- 
tary: See  sec.  19S6,  subd.  2. 

§  2032.  Either  party  may  attend  the  examina- 
tion and  put  such  questions,  direct  and  cross,  as 
may  be  proper.  The  deposition,  when  complet- 
ed, must  be  carefully  read  to  the  witness  and  cor- 
rected by  him  in  any  particular,  if  desired;  it 
must  then  be  subscribed  by  the  witness,  certified 
by  the  judge  or  oflicer  talving  the  deposition,  in- 
closed in  an  envelope  or  wrapper,  sealed  and  di- 
rected to  the  clerk  of  the  court  in  which  the  ac- 
tion is  pending,  or  to  such  person  as  the  parties 
in  writing  may  agree  upon,  and  either  delivered 
by  the  judge  or  officer  to  the  clerk  or  such  person, 
or  transmitted  through  the  mail,  or  by  some  safe 
private  opportunity;  and  thereupon  such  deposi- 
tion may  be  used  by  either  party  upon  the  trial 
or  other  proceeding  against  any  party  giving  or 
receiving  the  notice,  subjest  to  all  legal  excep- 
tions; but  if  the  parties  attend  at  the  examina- 
tion, no  objection  to  the  form  of  an  interroga- 
tory, shall  be  made  at  the  trial,  unless  the  same 
was  stated  at  the  time  of  the  examination.  If 
the  deposition  be  talvcn  under  subdivisions  two. 
three,  and  four,  of  section  tAvo  thousand  and 
twenty-one,  proof  must  be  made  at  the  trial  that 
the  witness  continues  absent  or  infirm,  or  is  dead. 
The  deposition  thus  taken  may  be  also  read  in 
case  of  the  death  of  the  witness. 

Depositions  must  be  in  the  form  of  question  and 
answer,  unless  otlierwiso  agreed:  Sec.  2006. 

Notice:  Sec.  20.33. 

§  2033.  Notwithstanding  tlio  taking  of  a  depo- 
sition, it  may  be  excluded  from  the  case  upon 
proof  that  sufficient  notice  was  not  given  to  the 
party  against  whom  it  is  offered  to  enable  him  to 


767  MANNER    OF    PRODUCTION.        §§  2034-2037 

attend  the  taking  thereof,  or  that  the  taking  was 
not  in  all  respects  fair. 

§  2034.  When  a  deposition  has  been  once  tak- 
en, it  may  be  read  by  either  party  in  any  stage  of 
the  same  action  or  proceeding,  or  in  any  other  ac- 
tion between  the  same  parties  upon  the  same 
subject,  and  is  then  deemed  the  evidence  of  the 
party  reading  it. 

Reading  deposition— in  another  action:  Sec.  2028. 

§  2035.  Any  party  to  an  action  or  special  pro- 
ceeding in  a  court,  or  before  a  judge,  of  a  sister 
State,  may  obtain  the  testimony  of  a  witness  re- 
siding in  this  State,  to  be  used  in  such  action  or 
proceeding,  in  the  cases  mentioned  in  the  next 
two  sections. 

§  2036.  If  a  commission  to  take  such  testimony 
has  been  issued  from  the  court,  or  a  judge  there- 
of, before  which  such  action  "or  proceeding  is 
pending,  on  producing  the  commission  to  a  judge 
of  the  siiperior  court,  with  an  affidavit  satisfac- 
tory to  him  of  the  materiality  of  the  testimony, 
he  may  issue  a  subpoena  to  the  witness,  re'quir- 
ing  him  to  appear  and  testify  before  the  commis- 
sioner named  in  the  commission,  at  a  specified 
time  and  place.  [Amendment  approved  April  16, 
1880:  Amendments  1880,  p.  115.  'In  effect  April 
16,  1880.] 

Subpoena:  Sec.  1985  et  seq. 

§  2037.  If  a  commission  has  not  been  issued, 
and  it  appear  to  a  judge  of  the  Superior  Court,  or 
to  a  justice  of  the  peace,  by  affidavit  satisfactory 
to  him: 

3 .  That  the  testimony  of  the  witness  is  material 
to  either  party: 

2.  That  a  commission  to  take  the  testimony  of 
such  witness  has  not  been  issued: 


§§  2038,  2042       MANNER    OF   PRODUCTION.  768 

3.  That,  according  to  the  law  of  the  State 
where  the  action  or  special  proceeding  is  pending, 
the  deposition  of  a  witness  fallen  under  such  cir- 
cumstances, and  before  such  judge  or  justice, 
will  be  received  in  the  action  or  proceeding;  he 
must  issue  his  subpoena  requiring  the  witness  to 
appear  and  testify  before  him  at  a  specified  time 
and  place.  [Amendment  approved  April  16,  1880; 
Amendments  1880,  p.  115.  In  effect  April  16, 
1880.] 

§  2038.  Upon  the  appearance  of  the  witness, 
the  judge  or  justice  must  cause  his  testimony  to 
be  taken  in  writing,  and  must  certify  and  trans- 
mit the  same  to  the  court  or  judge  before  whom 
the  action  or  proceeding  is  pending,  in  such  man- 
ner as  the  law  of  that  State  requires. 


ARTICLE  VI. 

GENERAL    RULES    OF    EXAMINATION. 

§  2042.  Order  of  proof,  how  regulated. 

§  2043.  Witnesses  not  under  examination  may  be  excluded. 

§  2044,  Court  may  control   mode  of   interrogation. 

§  2045.  Direct  and  cross-examination  defined. 

§  2046.  Leading  question   defined. 

§  2047.  When  witness  may  refresh  memory  from  notes. 

§  2048.  Cross-examination,   as  to  what. 

§  2049.  Party  producing  witness,  how  far  may  Impeach  his 
credit. 

§  2050.  Witness,   how  examined.    When   re-examined. 

§  2051.  How  impeached. 

§  2052.  Same. 

§  2053.  Evidence  of  good  character,  when  allowed. 

§  2054.  Writing  shown  to  witness  may  be  inspected  by  ad- 
verse party. 

§  2042.  The  order  of  proof  must  be  regulated 
by  the  sound  discretion  of  the  court.  Ordinarily, 
the  party  beginning  the  case  must  exhause  his  evi- 
dence before  the  other  party  begins. 


739  MANNER    OP    PRODUCTION.  §§2043-2047 

Order  of  proof— controlled  by  court:  Sec.  607. 
Reopeuinsi-  case:  Sec.  GOT,  subd.  3. 
llebuttal:  See  sec.  607. 

§  2043.  If  either  party  requires  it,  the  judge 
may  exclude  from  the  court-room  any  witness  of 
the  adverse  party,  not  at  the  time  under  examina- 
tion, so  that  he  may  not  hear  the  testimony  of 
other  witnesses. 

§  2044.  The  court  must  exercise  a  reasonable 
control  over  the  mode  of  interrogation,  so  as  to 
make  it  as  rapid,  as  distinct,  as  little  annoying  to 
the  witness,  and  as  effective  for  the  extraction  of 
the  truth  as  may  be;  but  subject  to  this  rule— 
the  parties  may  put  such  pertinent  and  legal  ques- 
tions as  they  see  fit.  The  court,  however,  may 
stop  tlie  production  of  further  evidence  upon  any 
particular  point  when  the  evidence  upon  it  is  al- 
ready so  full  as  to  preclude  reasonable  doubt. 

Answer  of  witness:  Sees.  2065,  2066. 

§  2045.  The  examination  of  a  witness  by  the 
party  producing  him  is  denominated  the  direct 
examination;  the  examination  of  the  same  wit- 
ness, upon  the  same  matter,  by  the  adverse  party, 
the  cross-examination.  The  direct  examination 
must  be  completed  before  the  cross-examination 
begins,  unless  the  court  otherwise  direct. 

§  2046.  A  question  which  suggests  to  the  wit- 
ness the  answer  which  the  examining  party  de- 
sires, is  denominated  a  leading  or  suggestive  ques- 
tion. On  a  direct  examination,  leading  ques- 
tions are  not  allowed,  except  in  the  sound  dis- 
cretion of  the  court,  under  special  circumstances 
making  it  appear  that  tlie  interests  of  justice 
require  it. 

§  2047.  A  witness  is  allowed  to  refresh  his 
memory  respecting  a  fact,   by  anything  written 

Code   Civ.    Proc— 65. 


§§  2048-2050        MANNER    OF    PRODUCTION.  770 

by  himself  or  under  his  direction  at  the  time  when 
the  fact  occurred  or  immediately  thereafter,  or 
at  any  other  time  when  the  fact  was  fresh  in 
his  memory  and  he  knew  that  the  same  was  cor- 
rectly stated  in  the  writing.  But  in  such  case, 
the  writing  must  be  produced  and  may  be  seen 
by  the  adverse  party,  who  may,  if  he  chooses, 
cross-examine  the  witness  upon  it,  and  may  read 
it  to  the  jury.  So,  also,  a  witness  may  testify 
from  such  a  writing,  though  he  retain  no  recollec- 
tion of  the  particular  facts,  but  such  evidence 
must  be  received  with  caution. 

Inspection  of  writing— shown  to  witness:  Sec. 
2054. 

§  2048.  The  opposite  party  may  cross-exam- 
ine the  witness  as  to  any  facts  stated  in  his  direct 
examination  or  connected  therewith,  and  in  so  do- 
ing may  put  leading  questions,  but  if  he  examine 
him  as  to  other  matters,  such  examination  is  to 
be  subject  to  the  same  rules  as  a  direct  examina- 
tion. 

Stopping  further  testimony:  Sec.  2044. 

§  2049.  The  party  producing  a  witness  is  not 
allowed  to  impeach  his  credit  by  evidence  of  bad 
character,  but  he  may  contradict  him  by  other 
evidence,  and  may  also  show  that  he  has  made 
iit  other  times  statements  inconsistent  with  his 
present  testimony,  as  provided  in  section  two 
thousand  and  fifty-two. 

§  2050.  A  witness  once  examined  cannot  be  re- 
examined as  to  the  same  matter  without  leave  of 
the  court,  but  he  mny  be  re-examined  as  to  any 
new  matter  upon  which  he  has  been  examined  by 
the  adverse  party.  And  after  the  examinations 
on  both  sides  are  once  concluded,  the  witness  can- 
not be  recalled  without  leave  of  the  court. 
Leave  is  granted  or  withheld,  in  the  exercise  of 
a  sound  discretion. 


771  MANNER    OF    PRODUCTION.        §§  2051-2054 

Recalling  witness— discretion  of  court,  sec.  607, 
subd.  3. 

§  2051.  A  witness  may  be  impeached  by  the 
party  against  Avhom  he  was  called,  by  contradic- 
tory evidence,  or  by  evidence  that  his  general 
reputation  for  truth,  honesty,  or  integrity  is  bad, 
but  not  by  evidence  of  particular  wrongful  acts, 
except  that  it  may  be  shown  by  the  examination 
of  the  witness,  or  the  record  of  the  judgment,  that 
he  has  been  convicted  of  a  felony. 

Compare  sec.  1847. 

Good  character,  showing  after  impeachment: 
Sec.  2053. 

Falsus  in  uno  falsus  in  omnibus:  See  sec.  2061. 

§  2052.  A  witness  may  also  be  impeached  by 
evidence  that  he  has  made,  at  other  times,  state- 
ments inconsistent  with  his  present  testimony;  but 
before  this  can  be  done  the  statements  must  be 
related  to  him.  with  the  circumstances  of  times, 
places,  and  persons  present,  and  he  must  be  asked 
whether  he  made  such  statements,  and  if  so,  al- 
lowed to  explain  them.  If  the  statements  be  in 
writing,  they  must  be  shown  to  the  witness  before 
any  question  is  put  to  him  concerning  them. 

§  2053.  Evidence  of  the  good  character  of  a 
party  is  not  admissible  in  a  civil  action,  nor  of  a 
witness  in  any  action,  until  the  character  of  such 
party  or  witness  has  been  impeached,  or  unless 
the  Issue  involves  his  character. 

§  2054.  Whenever  a  writing  is  shown  to  a  wit- 
ness, it  may  be  inspected  by  the  opposite  party, 
and  if  proved  by  the  witness  must  be  read  to  the 
jury  before  his  testimony  is  closed,  or  it  cannot  be 
read  except  on  recalling  the  witness. 

Writing  to  refresh  memory:  Sec.  2047. 


I  2061  EFFECT    OF    EVIDENCE.  772 

TITLE   IV. 

OP   THE   EFFECT   OF   EVIDENCE. 

§  2061.     Jury   judges   of   effect   of   evidence,    but   to   be    in- 
structed on  certain  points. 

§  2061.  The  jury,  subject  to  the  control  of  the 
court,  in  the  cases  specified  in  tliis  Code,  are  the 
judges  of  the  effect  or  value  of  evidence  address- 
ed to  them,  except  when  it  is  declared  to  be  con- 
clusive. They  are,  however,  to  be  instructed  by 
the  court  on  all  proper  occasions— 

1.  That  their  power  of  judging  of  the  effect  of 
evidence  is  not  arbitrary,  but  to  be  exercised  with 
legal  discretion,  and  in  subordination  to  thq  rules 
of  evidence. 

2.  That  they  are  not  bound  to  decide  in  con- 
formity with  the  declarations  of  any  number  of 
Avitnesses,  which  do  not  produce  conviction  in 
their  minds,  against  a  less  number  or  against  a 
presumption  or  other  evidence  satisfying  their 
minds. 

8.  That  a  witness  false  in  one  part  of  his  testi- 
mony is  to  be  distrusted  in  others. 

4.  That  the  testimony  of  an  accomplice  ought 
to  be  viewed  with  distrust,  and  the  evidence  of 
the  oral  admissions  of  a  party  with  caution. 

5.  Tlint  in  civil  cases  the  affirmative  of  the  is- 
sue must  be  proved,  and  when  tlie  evidence  is 
conti-adictory  the  d(»cision  must  be  made  accord- 
ing to  Ihe  preponderance  of  evidence:  that  in 
criminal  cases  guilt  must  be  established  beyond  a 
reasonable  doubt. 

0.  That  evidence  is  to  be  estimated  not  only  by 
its  own  intrinsic  weight,  but  also  according  to 
the  evidence  which  it  is  in  the  jwwer  of  one  side 
to  produce,  and  of  the  other  to  contradict;  and, 
therefore, 


773  RIGHTS   AND    DUTIES    OF    WITNESSES.       §  2064 

7.  That  if  weaker  and  less  satisfactory  evidence 
is  offered,  wlien  it  appears  tliat  stronger  and  more 
satisfactory  was  witliin  tlie  power  of  the  party, 
the  evidence  offered  should  be  viewed  with  dis- 
trust. 

Province  of  jury— questions  of  fact:  Sec.  2101. 
Credibility  of  witnesses:  See  sec.  1847,  ante. 
Province  of  court:   Compare  sec.   60S  and   sec. 
2102. 
Admissions:  See  sec.  1870,  subd.  2  and  note. 


TITLE  V. 

OF  THE  RIGHTS  AND  DUTIES   OF  WITNESSES. 

§  2064.    Witnesses  bound  to  attend  when  subpoenaed. 

§  2065.    Witnesses  bound  to  answer  questions. 

§  20fi6.     Right  of  witnesses  to  protection. 

§  2067.    Witnesses    protected    from    arrest    when    attending. 

or  going  or  returning. 
§  2068.    Arrest  to  be  made  void,   and  party  making  arrest 

liable,  etc. 
§  2069.    To  make  affidavit  if  arrested. 
§  2070.    Court  to   discharge   witness   from   arrest. 

§  2064.  A  witness,  served  with  a  subpoena, 
must  attend  at  the  time  appointed,  with  any  pa- 
pers under  his  control  required  by  the  subpoena, 
and  answer  all  pertinent  and  legal  questions;  and, 
unless  sooner  discharged,  must  remain  until  the 
testimony  is  closed. 

Subpoena:  Sees.  1985,  1991. 

Answering  questions:  Sec.  20G5. 

Witnesses— competency,   etc.,   sees.   1878-1884. 

Examination,  impeachment,  refreshing  mem- 
ory, etc.:  Sees.  2042-20.54. 

Power  to  compel  attendance:  Sees.  128,  177-178. 

Change  of  place  of  holding  court,  effect  of:  Sec. 
143. 

Contempt:  Sees.  1209,  1219. 


§§  2065-2068    RIGHTS,    ETC.,    OF    WITNESSES.  774 

§  2065.  A  witness  must  answer  questions  le- 
gal and  pertinent  to  the  matter  in  issue,  though 
his  answer  may  establish  a  claim  against  him- 
self; but  he  need  not  give  an  answer  which  will 
have  a  tendency  to  subject  him  to  punishment  for 
a  felony;  nor  need  he  give  an  answer  which  will 
have  a  direct  tendency  to  degrade  his  character, 
unless  it  be  to  the  very  fact  in  issue,  or  to  a  fact 
from  which  the  fact  in  issue  would  be  presumed. 
But  a  witness  must  answer  as  to  the  fact  of  his 
previous  conviction  for  felony. 

Contempt:  Sees.  1209,  1219. 

§  2066.  It  is  the  right  of  a  witness  to  be  pro- 
tected from  irrelevant,  improper,  or  insulting 
questions,  and  from  harsh  or  insulting  demeanor; 
to  be  detained  only  so  long  as  the  interests  of  jus- 
tice require  it;  to  be  examined  only  as  to  matters 
legal  and  pertinent  to  the  issue. 

Compare  sec.  2044. 

Detention  of  witness— unreasonable,  constitu- 
tional prohibition  of:  See  Const.  Cal,  art.  1,  sec.  6, 

Unreasonable  detention  forbidden:  Const.  Cal., 
art.  1,  sec.  6. 

§  2067.  Every  person  who  has  been,  in  good 
faith,  served  with  a  subpoena  to  attend  as  a 
witness  before  a  court,  judge,  commissioner,  ref- 
eree, or  other  person,  in  a  case  where  the  diso- 
bedience of  the  witness  may  be  punished  as  a  con- 
tempt, is  exonerated  from  arrest  in  a  civil  ac- 
tion while  going  to  the  place  of  attendance,  nec- 
essarily remaining  there  and  returning  therefrom. 

§  2068.  The  arrest  of  a  witness,  contrary  to 
the  preceding  section,  is  void,  and  when  willfully 
made,  is  a  contempt  of  the  court;  and  the  person 
making  it  is  responsible  to  the  witness  arrested 
for  double  the  amount  of  the  damages  Avhich  may 
be  assessed  against  him,  and  is  also  liable  to  an 
action  at  the  suit  of  the  party  serving  the  wit- 


775  RIGHTS,   ETC.,    OF   WITNESSES.    §§  2069,  ^. 

uess  with  a  subpoena,  for  the  damages  sustained 
by  him  in  consequence  of  the  arrest. 
Contempt  of  court:  See  sees.  1209-1222. 

§  2069.  An  officer  is  not  liable  to  the  party  for 
making  the  arrest  in  ignorance  of  the  facts  creat- 
ing the  exoneration,  but  is  liable  for  any  subse- 
quent detention  of  the  party,  if  such  party  claim 
the  exemption  and  mali:e  an  affidavit  stating — 

1.  That  he  has  been  served  with  a  subpoena  to 
attend  as  a  witness  before  a  court,  officer,  or  oth- 
er person,  specifying  the  same,  the  place  of  at- 
tendance, and  the  action  or  proceeding  in  which 
the  subpoena  was  issued;  and, 

2.  That  he  has  not  thus  been  served  by  his  own 
procurement,  with  the  intention  of  avoiding  an 
arrest; 

3.  That  he  is  at  the  time  going  to  the  place  of 
attendance,  or  returning  therefrom,  or  remaining 
there  in  obedience  to  the  subpoena. 

The  affidavit  may  be  taken  by  the  officer,  and 
exonerates  him  from  liability  for  discharging  the 
witness  when  arrested. 

§  2070.  The  court  or  officer  issuing  the  sub- 
poena, and  the  court  or  officer  before  whom  the 
attendance  is  required,  may  discharge  the  witness 
from  an  arrest  made  in  violation  of  section  two 
thousand  and  sixty-seven.  If  the  court  have  ad- 
journed before  the  arrest,  or  before  application 
for  the  discharge,  a  judge  of  the  court  may  grant 
the  discharge.  [Amendment  approved  April  16. 
1880;  Amendments  1880,  p.  IIG.  In  effect  April 
10,  1880.] 


§§  2074,  2075  EVIDENCE,    ETC.  776 


TITLE  VI. 

OF    EVIDENCE  IN    PARTICULAR   CASES,  AND  MISCELLA. 
NEOUS  AND  GENERAL   PROVISIONS. 

Chap.  1.    Evidence  in    particular    cases,  §§  2074- 
2079. 
II.    Proceedings  to  perpetuate  testimony,  §§ 
2088-2U89. 
III.    Administration  of  oaths     and    affirma- 
tions, §§  2093-2095. 
IV.    General  provisions,   §§  2101-2104. 


CHAPTER  I. 

EVIDENCE    IN   PARTICULAR    CASES. 

§  2074.  An  offer  equivalent  to  payment. 

§  2075.  Whoever  pays  entitled  to  receipt. 

§  2076.  Objections  to  tender  must  be  specified. 

§  2077.  Rules   for  construing  description  of   lands. 

§  2078.  Compromise  offer  of  no  avail. 

§  2079.  In  action  for  divorce,  admission  not  sufficient. 

§  2074.  An  offer  in  writing  to  pay  a  particular 
sum  of  money,  or  to  deliver  a  written  instrument 
or  specific  personal  property,  is,  if  not  accepted, 
equivalent  to  the  actual  production  and  tender  of 
the  money,  instrument,  or  property. 

Offer  to  compromise:  Sees.  997,  2078. 

Offer  of  performance:  See  Civ.  Code,  sees.  1485 
et  seq. 

§  2075.  Whoever  pays  money,  or  delivers  an 
instrument  or  property,  is  entitled  to  a  receipt 
therefor  from  the  person  to  whom  the  payment  or 
delivery  is  made,  and  may  demand  a  proper  sig- 
nature to  such  receipt  as  a  condition  of  the  pay- 
ment or  delivery. 

Debtor  entitled  to:  Civ.  Code,  sec.  1499. 


777  EVIDENCE,    ETC.  §§2076,  2077 

§  2076.  The  person  to  whom  a  tender  is  made, 
must,  at  the  time,  specify  any  objection  he  may 
have  to  the  money,  instrument,  or  property,  or  he 
must  be  deemed  to  have  waived  it;  and  if  the  ob- 
jection be  to  the  amount  of  money,  the  terms  of 
the  instrument,  or  the  amount  or  kind  of  prop- 
erty, he  must  specify  the  amount,  terms,  or  liind 
which  he  requires,  or  be  precluded  from  objecting 
afterward. 

Objections  must  be  stated:  Civ.  Code,  sec.  1501. 

§  2077.  The  following  are  the  rules  for  con- 
struing the  descriptive  part  of  a  conveyance  of 
real  property,  when  the  construction  is  doubtful 
and  there  are  no  other  sufficient  circumstances  to 
determine  it: 

1.  Where  there  are  certain  definite  and  ascer- 
tained particulars  in  the  (lescri])tion.  tlie  addi- 
tion of  others  which  are  indefinite,  unknown,  or 
false,  does  not  frustrate  the  conveyance,  but  it 
is  to  be  construed  by  the  first  mentioned  partic- 
ulars: 

2.  When  permanent  and  visible  or  ascer- 
tained boundaries  or  monuments  are  inconsistent 
with  the  measurement,  either  of  lines,  angles,  or 
surfaces,  the  boundaries  or  monuments  are  para- 
mount; 

3.  Between  different  measurements  which  are 
inconsistent  with  each  other,  that  of  angles  is 
paramount  to  that  of  surfaces,  and  that  of  lines 
paramount  to  both; 

4.  When  a  road,  or  stream  of  water  not  naviga- 
ble, is  the  boundary,  the  rights  of  the  grantor  to 
the  middle  of  the  road  or  the  thread  of  the  stream 
are  included  in  the  conveyance,  except  where  the 
road  or  thread  of  the  stream  is  held  under  an- 
other title: 

.5.  When  tide-water  is  the  boundary  the  rights 
of  the  grantor  to  ordinary  high-water  mark  are 
included  in  the  conveyance.  When  a  navigable 
lake,  where  there  is  no  tide,  is  the  boundary,  the 


§§  2078,  2083    TO    PERPETUATE    TESTIMONY.  778 

rights  of  the  grantor  to  low-water  mark,  are  in- 
cluded in  the  conveyance; 

6.  When  the  description  refers  to  a  map,  and 
that  reference  is  inconsistent  with  other  particu- 
lars, it  controls  them  if  it  appear  that  the  parties 
acted  with  reference  to  the  map;  otlierwise,  the 
map  is  subordinate  to  other  definite  and  ascer- 
tained particulars.  [Amendment  approved  March 
24,  1874;  Amendments  1873-4,  p.  390.  In  effect 
July  1,   1874.] 

Description  in  conveyance — construction  of:  Sec. 
18G0. 

Construction  of  instruments,  generally:  Sec. 
1859. 

§  2078.  An  offer  of  compromise  is  not  an  ad- 
mission that  anything  is  due. 

Offer  to  compromise— after  suit  brought:  Sec. 
997. 

§  2079.  In  an  action  for  divorce  on  the  ground 
of  adultery,  a  confession  of  adultery,  whether  in 
or  out  of  the  pleadings,  is  not  of  itself  sufficient 
to  justify  a  judgment  of  divorce. 

Confessions— as  evidence  generally:  Sec.  1870, 
subd.  2. 

CHAPTER  II. 

PROCEEDINGS  TO  PERPETUATE  TESTIMONY. 

§  2083.  Evidence    may   be    perpetuated. 

§  2084.  Manner  of  application  for  order. 

5  2085.  Notice  of  time  and  place  to  be  given. 

§  2086.  Manner  of  taking  the   deposition. 

§  2087.  Deposition  to  be  filed. 

§  2088.  When  the  evidence  may  be  produced. 

§  2089.  Effect  of  the  deposition. 

§  2083.  The  testimony  of  a  witness  may  bo 
taken  and  perpetuated  as  provided  in  this  chap- 
ter. 


779  TO   PERPETUATE    TESTIMONY.    §§  2084,  2085 

§  2084.  The  applicaut  must  produce  to  a  judge 
of  the  superior  court  a  petition,  verified  by  the 
oath  of  the  applicant,  stating: 

1.  That  the  applicant  expects  to  be  a  party  to 
an  action  in  a  court  in  this  State,  and,  in  such 
case,  the  names  of  the  persons  whom  he  expects 
will  be  adverse  parties;  or, 

2.  That  the  proof  of  some  fact  is  necessary  to 
perfect  the  title  to  property  in  which  he  is  inter- 
ests!, or  to  establish  marriage,  descent,  heirship, 
or  any  other  matter  which  may  hereafter  become 
material  to  establish,  though  no  suit  may  at  the 
time  be  anticipated,  or,  if  anticipated,  he  may  not 
know  the  parties  to  such  suit;  and, 

3.  The  name  of  the  witness  to  be  examined,  his 
place  of  residence,  and  a  general  outline  of  the 
facts  expected  to  be  proved.  The  judge  to  whom 
such  petition  is  presented  must  malve  an  order  al- 
lowing the  examination,  and  designating  the  of- 
ficer before  whom  the  same  must  be  taken,  and 
prescribing  the  notice  to  be  given,  which  notice, 
if  the  parties  expectant  are  known  and  reside  in 
this  State,  must  be  personally  served,  and  if  un- 
known, such  notice  must  be  served  on  the  clerk 
of  the  county  where  the  property  to  be  affected 
by  such  evidence  is  situated,  or  the  judge  making 
the  order  resides,  as  may  be  directed  by  him,  and 
by  publication  thereof  in  some  newspaper,  to  be 
designated  by  the  judge,  for  the  same  period  re- 
quired for  the  publication  of  summons.  The 
judge  must  also  designate  in  Ids  order  the  clerk 
of  the  county  to  w^hom  the  deposition  must  be  re- 
turned when  taken.  [Amendment  approved  April 
16,  1880;  Amendments  1880.  p.  110.  In  effect  April 
10,  1880.] 

§  2085.  The  person  a])]K)inted  by  the  judge  to 
take  the  depositions  is  authorized,  if  a  resident  of 
this  State,  on  receiving  a  copy  of  the  order  of  the 
judge,  and  of  the  notice  prescribed  in  the  last  sec- 
tion, with  proof  of  its  personal  service  or  publi- 


§§  2086,  2087   TO   PERPETUATE   TESTIMONY.  780 

cation— or,  if  a  resident  without  the  State,  on 
receiving  the  commission  mentioned  in  the  next 
section,  with  proof  of  lilie  service  of  publication 
of  the  notice— to  talie  the  deposition  of  the  wit- 
ness named  in  the  order  of  the  judge,  or  in  the 
commission,  or,  if  more  than  one  witness  is  thus 
named,  of  such  of  them  as  appear  before  him,  at 
the  time  designated,  and  the  talking  of  the  same 
may  be  continued  from  time  to  time.  [Amend- 
ment approved  jNIarch  24,  1874;  Amendmefuts 
1873-4,  p.  392.    In  effect  July  1,  1874.] 

§  2086.  The  examination  must  be  by  question 
and  answer,  and  if  the  testimony  is  to  be  fallen 
in  another  State,  it  must  be  taken  upon  a  com- 
mission to  be  issued  by  the  judge  allowing  tlie 
examination,  under  the  seal  of  the  court  of  which 
he  is  judge,  and  upon  interrogatories,  to  be  set- 
tled in  the  same  manner  as  in  cases  of  deposi- 
tions fallen  under  commission  in  pending  actions, 
unless  the  parties  expectant,  if  known,  otherwise 
agree.  If  such  parties  are  unknown,  notice  of 
the  settlement  of  the  interrogatories  shall  be 
published  in  some  newspaper  for  such  time  as  the 
judge  may  designate.  The  deposition,  when  com- 
pleted, must  be  carefully  read  to  and  subscribed 
by  the  witness,  then  certified  by  the  officer  or 
person  talking  the  same,  and  shall  then  be  sealed 
up  and  delivered  or  transmitted  to  the  clerk  of 
the  county  designated  in  the  order  of  the  judge 
allowing  the  examination,  who  shall  file  the  same 
wlien  received.  The  judge  allowing  the  examina- 
tion shall  file  with  the  clerk  the  order  for  the  ex- 
amination, tlie  petition  on  which  the  same  was 
granted,  with  proof  of  service  of  the  order  and 
notice.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  392.  In  effect  July  1, 
1874.] 

§  2087.  The  petition  and  order,  and  papers  fil- 
ed l»y  the  judge  as  provided  in  section  two  thou- 


781  TO    PERPETUATE    TESTIMONY.    §§  2088,  2089 

sand  and  eighty-six,  or  a  certified  copy  thereof, 
are  prima  facie  evidence  of  tlie  facts  stated  there- 
in to  show  compliance  Avith  the  provisions  of  this 
chapter.  [Amendment  approved  March  24,  1874; 
Amendments  1873-4,  p.  393.  In  effect  July  1, 
1874.] 

§  2088.  If  a  trial  be  had  between  the  parties 
named  in  the  petition  as  parties  expectant,  or 
their  successors  in  interest,  or  between  any  par- 
ties wherein  it  may  be  material  to  establish  the 
facts  which  such  depositions  prove,  or  tend  to 
prove,  upon  proof  of  the  death  or  insanity  of  the 
witnesses,  or  that  they  cannot  be  found,  or  are  un- 
able, by  reason  of  age  or  other  infirmity,  to  give 
their  testimony,  the  depositions  or  copies  thereof 
may  be  used  by  either  party,  subject  to  all  legal 
objections;  but  if  the  parties  attended  at  the  ex- 
amination, no  objection  to  the  form  of  an  inter- 
rogatory can  be  made  at  the  trial,  unless  the  same 
was  stated  at  the  examination.  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  p. 
393.     In  efCect  July  1,  1874.] 

§  2089.  The  deposition  so  talvcn  and  read  in 
evidence  has  the  same  effect  as  the  oral  testimony 
of  the  witness,  and  no  other,  and  every  objection 
to  the  witness  or  to  the  relevancy  of  any  question 
put  to  him,  or  of  any  answer  given  by  him,  may 
be  made  in  the  same  manner  as  if  he  were  exam- 
ined orally  at  the  trial. 
Code  Civ.  Proc— 66. 


§§  2093-2095       OATHS    AND   AFFIRMATIONS.  782 

CHAPTER  III. 

ADMINISTRATION    OF   OATHS    AND    AFFIRMATIONS. 

§  2093.    Judicial  and  certain  ofRcors  authorized  to  adminis- 
ter oaths. 
§  2094.    Form  of  ordinary  oath  to  a  witness. 
§  2095.    Form  may  be  varied  to  .suit  witness'  belief. 
§  2096.    Same. 
§  2097.    Any  person  who  prefers  it  may  declare  or  affirm. 

§  2093.  Every  court,  every  judge  or  clerk  of 
any  court,  every  justice  and  every  notary  public, 
and  every  officer  or  person  authorized  to  talie  tes- 
timony in  any  action  or  proceeding,  or  to  decide 
upon  evidence,  has  power  to  administer  oaths  or 
affirmations. 

Administration  of  oaths— by  whom:  Sec.  128, 
subd.  7;  sec.  177,  subd.  4;  Polit.  Code,  sees.  1028, 
4118,  4103. 

§  2094.  An  oath,  or  affirmation,  in  an  action  or 
proceeding,  may  be  administered  as  follows,  the 
person  who  swears,  or  affirms,  expressing  his  as- 
sent when  addressed  in  the  following  form:  "You 
do  solemnly  swear  (or  affirm,  as  the  case  may  be) 
that  the  evidence  you  shall  give  in  this  issue  (or 

matter)  pending  between  and  ,  shall 

be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  so  help  you  God."  [Amendment  ap- 
proved March  24,  1874;  Amendments  1873-4,  p. 
393.    In  effect  July  1,  1874.] 

§  2095.  Whenever  the  court  before  which  a 
])erson  is  offered  as  a  witness  is  satisfied  that  he 
has  a  peculiar  mode  of  swearing,  connected  with, 
or  in  addition  to  the  usual  form  of  administration, 
which,  in  his  opinion,  is  more  solemn  or  obliga- 
tory, the  court  may  in  its  discretion,  adopt  that 
mode. 


783  GENERAL    PROVISIONS.  §§  2096,  2102 

§  2096.  When  a  person  is  sworn  who  believes 
in  any  other  than  the  christian  religion,  he  may- 
be sworn  according-  to  the  peculiar  ceremonies  of 
his  religion,  if  there  be  any  such. 

§  2097.  Any  person  who  desires  it  may,  at  his 
option,  instead  of  taking  an  oath,  malie  his  sol- 
^  emn  affirmation  or  declaration,  by  assenting,  when 
addressed  in  the  following  form:  "You  do  solemn- 
ly affirm  (or  declare)  that,"  etc.,  as  in  section  two 
thousand  and  ninety-four. 


CHAPTER  IV. 

GENERAL   PROVISIONS. 

5  2101.    Questions  of  fact  to  be  decided  by  the  jury,   and 

the  evidence  addressed  to  them. 
§  2102.    Questions   of  law  addressed  to   the   court. 
§  2103.    Questions  of  fact  by  court  or  referee. 
§  2104.    Moneys  paid  into  court. 

§  2101.  All  questions  of  fact,  where  the  trial 
is  by  jury,  other  than  those  mentioned  in  the  next 
section,  are  to  be  decided  by  the  jury,  and  all  evi- 
dence thereon  is  to  be  addressed  to  them,  except 
when  otherwise  provided  by  this  Code.  [Amend- 
ment approved  March  24,  1874;  Amendments 
1873-4,  p.  394.    In  effect  July  1,  1874.] 

Compare:  Sec.  2061. 

Effect  of  evidence,  for  jury:  Sec.  2001. 

Fraudulent  intent:  Civil  Code,  sec.  3442. 

§  2102.  All  questions  of  law,  including  the  ad- 
missibility of  testimony,  the  facts  preliminary  to 
such  admission,  and  the  construction  of  statutes 
and  other  writings,  and  other  rules  of  evidence, 
are  to  be  decided  by  tlie  court,  and  all  discussions 
of  law  addressed  to  it.  Whenever  the  Icnowledge 
of  the  court  is,  by  this  Code,  made  evidence  of  a 


§§  2103,  2104  GENERAL    PROVISIONS.  784 

fact,  the  court  is  to  declare  such  knowledge  to 
the  jury,  who  are  bound  to  accept  it. 

Knowledge  of  the  court— scope  of  judicial  no- 
tice: Sec.  1875. 

§  2103.  The  provisions  contained  in  this  part 
of  the  Code  respecting  the  evidence  on  a  trial  be- 
fore a  jury,  are  equally  applicable  on  the  trial  of 
a  question  of  fact  before  a  court,  referee,  or  oth- 
er officer. 

§  2104.  Whenever  moneys  are  paid  into  or  de- 
posited in  court,  the  same  shall  be  delivered  to  the 
clerk  in  person,  or  to  such  of  his  deputies  as  shall 
be  specially  authorized  by  his  appointment  in 
writing  to  receive  the  same.  He  must,  unless  oth- 
erwise directed  by  law,  deposit  it  with  the  county 
treasurer,  to  be  held  by  him  subject  to  the  order 
of  the  court.  The  treasurer  shall  keep  each  fund 
distinct,  and  open  an  account  with  each.  Such 
appointment  shall  be  filed  with  the  county  treas- 
urer, who  shall  exhibit  it,  and  give  to  each  person 
applying  for  the  same  a  certified  copy  of  the 
same.  It  shall  be  in  force  until  a  revocation  in 
writing  is  filed  Avith  the  county  treasurer,  who 
shall  thereupon  write  "revoked,"  in  inlv  across  the 
face  of  the  appointment.  [New  section  approved 
March  24,  1874;  Amendments  1873-4,  p.  394.  In 
effect  July  1,  1874.] 

Corresponding  provision:   Sec.  573. 

The  foregomg  noAv  section,  and  many  of  the  fore- 
going amendments  to  the  Code  of  Civil  Procedure, 
are  taken  from  "An  act  to  amend  the  Code  of  Civil 
Procedure."  approved  March  24,  1874:  Amend- 
ments 1873-4,  279.  The  amendatory  act  contained 
two  other  sections,  in  reference  to  the  effect  of  the 
new  provisions,  as  follows: 


785  GENERAL  PROVISIONS.  3?  2103,  2104 

Repealing  clause— Rights  preserved. 

Sec.  253.  All  provisious  of  law  inconsistent  with 
the  provisions  of  this  act  are  hereby  repealed;  but 
no  rights  acquired,  or  proceedings  taken  under,  the 
provisions  repealed  shall  be  impaired,  or  in  any 
manner  affected  by  this  repeal;  and  whenever  a 
limitation  or  period  of  time  prescribed  by  such  re- 
pealed provisions  for  acquiring  a  right  or  barring 
a  remedy,  orfor  any  other  purpose,  has  begun  to 
run  before  this  act  takes  effect,  and  the  same  or 
any  other  limitation  is  prescribed  by  this  act,  the 
time  which  shall  have  run  when  this  act  takes  ef- 
fect shall  be  deemed  part  of  the  time  prescribed  by 
this  act. 

Sec.  254.  This  act  takes  effect  on  the  first  day  of 
July,  eighteen  hundred  and  seventy-four. 


APPENDIX. 


APPEALS. 


An  Act  to  provide  for  the  taking  of  Appeals  from 
Judgments  or  Orders  given  or  made  in  tlie 
Courts  existing  on  and  before  the  first  day  of 
January,  eighteen  hundred  and  eighty. 

Appeals    from    judgments    existing    before  Janu- 
ary, 1880. 

Section  1.  In  any  case  where  judgment  had 
been  rendered,  given,  or  made,  or  an  appealable 
order  had  been  made  or  entered,  before  twelve 
o'cloclv  noon  of  the  first  day  of  January,  eighteen 
hundred  and  eighty,  in  or  by  any  court  which 
was  in  existence  on  and  before  the  first  day  of 
January,  eighteen  hundred  and  eighty,  from 
which  any  party  interested  had,  at  and  imme- 
diately before  the  constitution  went  into  effect, 
a  right  of  appeal  to  the  Supreme  Court  or  the 
county  court,  the  party  so  interested  shall  have 
the  right  to  appeal  from  such  judgment  or  order  to 
the  present  Supreme  Court,  or  to  the  Superior 
Court  of  the  county,  in  the  same  manner  and 
within  the  same  time  after  the  passage  of  this  act 
as  was  before  authorized  and  provided  by  law 
for  appeal  to  the  then  existing  Supreme  Court 
or  county  court;  and  upon  such  appeal  the  appel- 
late court  shall  have  tlie  same  jurisdiction  to  hear 
and  determine  the- matter  or  cause  as  the  former 
court  did  have  in  like  cases. 


788  APPENDIX. 

Sec.  2.  This  act  shall  take  effect  and  be  in 
force  from  and  after  its  passage.  [Approved 
April  8,  18S0;  1880,  24  (Ban.  ed.  121).] 


BONDS. 


An  Act  to  facilitate  the  giving  of  Bonds  required 
by  Law. 

§  1.    Incorporations  for  giving  bonds. 
§  2.     When  corporation  not  accepted, 
t:  §  3.    Duty  of  insurance  commissioner. 

Incorporations  for  giving  bonds. 

Section  1.  Whenever  any  person  who  now  or 
hereafter  may  be  required  or  permitted  by  law  to 
make,  execute,  and  give  a  bond  or  undertaking, 
with  one  or  more  sureties,  conditioned  for  the 
faithful  performance  of  any  duty,  or  for  the  doing 
or  not  doing  of  anything  in  said  bond  or  under- 
taking specified,  any  head  of  department,  board, 
court,  judge,  ofiicer,  or  other  person  who  is  now 
or  shall  hereafter  be  required  to  approve  the  suf- 
ficiency of  any  such  bond  or  undertaking,  or  the 
sureties  thereon,  may  accept  as  sole  and  sufficient 
surety  on  such  bond  or  undertaking  any  corpo- 
ration incorporated  under  the  laws  of  any  State 
of  the  United  States  for  the  purpose  of  making  or 
guaranteeing  bonds  and  undertakings  required  by 
law,  and  which  shall  have  complied  with  all  the 
requirements  of  the  laws  of  this  State  regulating 
the  admission  of  such  corporation  to  transact 
such  business  in  this  State;  and  all  such  coii^ora- 
tions  are  hereby  vested  with  full  power  and  au- 
thority to  make  and  guarantee  such  bonds  and 
undertakings,  and  shall  be  subject  to  all  the  lia- 
bilities and  entitled  to  all  the  rights  of  natural 
persons  sureties. 


APPENDIX.  789 

When  corporation  not  accepted. 

Sec.  2.  It  is  further  provided  that  the  guaranty 
of  any  such  company  shall  not  be  accepted  by 
heads  of  departments  or  others,  as  provided  in 
section  one  of  this  act,  whenever  its  liabilities 
shall  exceed  its  assets,  as  ascertained  in  the  man- 
ner provided  in  section  three  of  this  act.  . 
Duty  of  insurance  commissioner. 

Sec.  3.  AVhenever  the  liabilities  of  any  such 
company  shall  exceed  its  assets,  the  insurance 
commissioner  shall  require  the  deficiency  to  be 
paid  up  within  sixty  days,  and  if  it  is  not  so  paid 
up,  then  he  shall  issue  a  certificate  showing  the 
extent  of  such  deficiency,  and  he  shall  publish 
the  same  once  a  week  for  three  weeks  in  a  daily 
San  Francisco  paper,  and  thenceforth,  and  until 
such  deficiency  is  paid  up,  such  company  shall 
not  do  business  under  the  provisions  of  this  act. 
And  in  estimating  the  condition  of  any  such  com- 
pany, under  the  provisions  of  this  act,  the  com- 
missioner shall  allow  as  assets  only  such  as  are 
authorized  under  existing  laws  at  the  time,  and 
shall  charge  as  liabilities,  in  addition  to  eighty 
per  cent  of  the  capital  stock,  all  outstanding  in- 
debtedness of  the  company,  and  a  premium  re- 
serve equal  to  fifty  per  centum  of  the  premiums 
charged  by  said  company  on  all  risks  then  in 
force.  Nothing  herein  contained  shall  apply  to 
bonds  given  in  criminal  cases. 

Sec.  4.  This  act  shall  take  effect  immediately. 
[Approved  March  12,  1885;  188.5,  114.] 


790  APPENDIX. 


COSTS. 


An  Act  concerning  the  Costs  in  Civil  Actions  for 
Serving  Summonses  and  Subpoenas. 

Section  1.  In  all  civil  actions,  when  a  summons 
or  subpoena  is  served  by  a  person  other  than  the 
sheriff,  the  person  so  serving  shall  be  allowed  by 
the  court  issuing  the  process  such  sum  as  the 
court  may  thinlv  proper,  not  exceeding  the 
amount  allowed  sheriffs  by  law. 

Sec.  2.  This  act  shall  talie  effect  from  and  after 
its  passage.  [Approved  March  10,  1891;  Stats. 
1891,  p.  56.] 

Act  concerning  Costs  in  Actions     of     Libel  and 
Slander,  see  post,  p.  86 


COURTS. 

An  Act  to  provide  for  the  appointment  by  the 
Supreme  Court  of  three  commissioners,  to  be 
known  as  Commissioners  of  the  Supreme 
Court,  and  to  appoint  a  secretary  therefor,  to 
relieve  said  Court  from  the  overburdened  con- 
dition of  its  Calendar,  and  to  provide  for  the 
compensation  of  said  commissioners  and  secre- 
tary. 

§  1.     Supreme  court  commission 

§  2.    Secretary. 

§  3.    Appropriation. 

Section  1.  The  Supreme  Court  of  the  State  of 
California,  immediately  upon  the  taking  effect  of 
this  act,  shall  appoint  three  persons  of  legal  learn- 


APPENDIX.  791 

iiig  and  persoual  worth  as  commissioners  of  said 
court.  It  shall  be  the  duty  of  said  commissioners, 
under  such  rules  and  regulations  as  said  court 
may  adopt,  to  aid  and  assist  the  court  in  the  per- 
formance of  its  duties,  and  in  the  disposition  of 
the  numerous  causes  now  pending  in  said  court 
undetermined.  The  said  commissioners  shall  hold 
ofiice  for  the  term  of  four  years  from  and  after 
their  appointment,  during  which  time  they  shall 
not  engage  in  the  practice  of  the  law.  They  shall 
each  receive  a  salary  equal  to  the  salary  of  a 
judge  of  said  court,  payable  at  the  same  time  and 
in  the  same  manner.  Before  entering  upon  the 
discharge  of  their  duties  they  shall  each  take  an 
oath  to  support  the  Constitution  of  the  United 
States  and  the  Constitution  of  the  State  of  Cali- 
fornia, and  to  faithfully  discharge  the  duties  of 
the  office  of  commissioner  of  the  Supreme  Court 
to  the  best  of  their  ability.  The  said  court  shall 
have  poAver  to  remove  any  and  all  members  of 
said  commission  at  any  time  by  an  order  entered 
on  the  minutes  of  said  court,  and  all  vacancies  in 
said  commission  shall  be  filled  in  lil^e  manner. 

Sec.  2.  Upon  the  appointment  of  said  commis- 
sioners, as  in  this  act  provided,  said  court  is  here- 
by authorized  to  appoint  a  secretary  for  such 
commission,  who  shall  hold  office  during  the  pleas- 
ure of  the  court,  not  to  exceed  the  term  of  said 
commission,  and  who  shall  have  a  salary  of  two 
hundred  dollars  per  mouth,  payable  at  the  same 
time  and  in  the  same  manner  as  said  commission. 

Sec.  3.  The  sum  of  forty  thousand  eight  hun- 
dred dollars  is  hereby  appropriated  out  of  any 
money  that  is  or  may  be  in  the  general  fund  not 
otherwise  appropriated,  for  the  purpose  of  paying 
the  salary  of  said  commission  and  secretary,  for 
the  thirty-sixth,  thirty-seventh,  and  thirty-eighth 
fiscal  years;  and  the  controller  is  authorized  to 


792  APPENDIX. 

draw  monthly  warrants  upon  the  State  treasury 
in  favor  of  said  commissioners  and  secretary,  in 
the  sum  of  five  hundred  dollars  for  each  of  said 
commissioners,  and  in  the  sum  of  two  hundred 
dollars  for  said  secretary.  [Approved  March  12, 
iS8r>.] 

An  Act  to  provide  for  the  appointment  by  the  Su- 
preme Court  of  five  Commissioners,  to  be 
known  as  Commissioners  of  the  Supreme 
Court,  and  to  appoint  a  Secretary  therefor,  to 
relieve  said  Court  from  the  overburdened  con- 
dition of  its  Calendar,  and  to  provide  for  the 
compensation  of  said  Commissioners  and  Sec- 
retary, and  to  appropriate  money  therefor. 

§  1.    Supremo   court  commission 

§  2.     Secretary. 

§  3.    Appropriation. 

Supreme  court  commissioners— Salary. 

Section  1.    The  Supreme  Court  of  the  State  of 
California  shall  immediately,  upon  the  expiration 

of  the  term  of  oflice  of  the  present  Supreme  Court 
commissioners,  appoint  five  persons  of  legal  learn- 
ing and  personal  worth  as  commissioners  of  said 
court.  It  shall  be  the  duty  of  said  commissioners, 
under  such  rules  and  regulations  as  said  court 
may  adopt,  to  assist  in  the  performance  of  its  du- 
ties, and  in  the  disposition  of  the  numerous  causes 
now  pending  in  said  court  undetermined.  The  said 
commissioners  shall  hold  office  for  the  term  of 
four  years  from  and  after  their  appointment,  dur- 
ing which  time  they  shall  not  engage  in  the  prac- 
tice of  the  law.  They  shall  each  receive  a  salary 
equal  to  tJie  salary  of  a  judge  of  said  court,  pay- 
able at  the  same  time  and  in  the  same  manner. 
Before  entering  upon  the  discharge  of  their  duties, 
they  shall  each  take  an  oath  to  support  the  con- 


APPENDIX.  793 

stitution  of  the  Uuited  States  and  the  constitu- 
tion of  the  State  of  California,  and  to  faithfully 
discharge  the  duties  of  the  ottice  of  commissioner 
of  the  Supreme  Court  to  the  best  of  their  ability. 
The  said  court  shall  have  power  to  remove  any  and 
all  members  of  said  commission  at  any  time  by  an 
order  entered  on  the  minutes  of  said  court,  and 
all  vacancies  in  said  commission  shall  be  filed  in 
lilie  manner. 

Secretai-y. 

Sec.  2.  Upon  the  appointment  of  said  commis- 
sioners, as  in  this  act  provided,  said  court  is  here- 
by authorized  to  appoint  a  secretary  for  such  com- 
mission, who  shall  hold  ottice  during  the  pleasure 
of  the  court,  not  to  exceed  the  term  of  said  com- 
mission, and  who  shall  have  a  salary  of  two  hun- 
dred dollars  per  month,  payable  at  the  same  time 
and  in  the  same  manner  as  said  commission. 
Appropriation. 

Sec.  3.  The  sum  of  sixty-seven  thousand  seven 
hundred  dollars  is  hereby  appropriated  out  of  any 
money  that  is  or  may  be  in  the  State  treasury  not 
otherwise  appropriated,  for  the  purpose  of  paying 
the  salary  of  said  commission  and  secretary  for 
the  remainder  of  the  fortieth  fiscal  year,  and  for 
the  forty -first  and  forty-second  fiscal  years;  and 
the  controller  is  hereby  authorized  to  draw  month- 
ly warrants  upon  the  State  treasury  in  favor  of 
said  commissioners  and  secretary  in  the  sum  of 
five  hundred  dollars  for  each  of  said  commission- 
ers, and  in  the  sum  of  two  hundred  dollars  for 
said  secretary. 

Sec.  4.  This  act  shall  tal^e  effect  from  and  after 
its  passage.  [Approved  February  15,  1889;  1889, 
13.] 

Code  Civ.  Proc— 67. 


794  APPENDIX. 


Au  Act  to  provide  for  the  appoiutment  by  the  Su- 
preme Court  of  five  Commissioners,  to  be 
known  as  Commissioners  of  the  Supreme  Court, 
and  to  appoint  a  Secretary  therefor,  to  assist 
said  Court  in  the  performance  of  its  duties  and 
in  the  disposition  of  numerous  causes  pending 
in  said  Court,  and  to  provide  for  the  compen- 
sation of  said  Commissioners  and  Secretary, 
and  to  appropriate  money  therefor. 

;■      .  §  1.     Supreme   court  commission 

§  2.     Seciulaiy. 
§  3.     Appropriation. 

Section  1.  The  Supreme  Court  of  the  State  of 
California  shall,  immediately  upon  the  expiration 
of  the  term  of  office  of  the  present  Supreme  Court 
commissioners,  appoint  five  persons  of  legal  learn- 
ing and  personal  worth  as  commissioners  of  said 
court.  It  shall  be  the  duty  of  said  commissioners, 
under  such  rules  and  regulations  as  said  court 
may  adopt,  to  assist  in  the  performance  of  its  du- 
ties and  in  the  disposition  of  the  numerous  causes 
pending  in  said  court.  The  said  commissioners 
shall  hold  office  for  the  term  of  four  years  from 
and  after  their  appointment,  during  which  time 
they  shall  not  engage  in  the  practice  of  law.  They 
shall  each  receive  a  salary  equal  to  the  salary  of  a 
judge  of  said  court,  payable  at  the  same  time  and 
in  the  same  manner.  Before  entering  upon  the 
discharge  of  their  duties,  they  shall  each  talie  an 
oath  to  support  the  Constitution  of  the  United 
States  and  the  Constitution  of  the  State  of  Cali- 
fornia, and  to  faithfully  discharge  the  duties  of 
the  office  of  commissioner  of  the  Supreme  Court 
to  the  best  of  their  ability.  The  said  court  shall 
have  power  to  remove  any  and  all  members  of 
said  commission  at  any  time,  by  an  order  entered 


APPENDIX.  795 

on  the  mluutes  of  said  court,  and  all  vacancies  in 
said  commission  shall  be  filled  in  like  manner. 

S'ic.  2.  Upon  the  appointment  of  said  commis- 
sioners, as  in  ihis  act  provided,  said  court  is  here- 
by authorized  to  appoint  a  secretary  for  such  com- 
mission, who  shall  hold  office  during  the  pleasure 
of  the  court,  not  to  exceed  the  term  of  said  com- 
mission, and  who  shall  have  a  salary  of  two  hun- 
dred dollars  per  month,  payable  at  the  same  time 
and  in  the  same  manner  as  said  commission, 
which  sum  shall  be  in  full  compensation  for  all 
services  rendered  by  him  in  the  discharge  of  his 
duties. 

Sec.  3.  The  sum  of  sixty-seven  thousaid  dol- 
lars is  hereby  appropriated  out  of  any  money  that 
is  or  may  be  in  the  State  treasury  not  otherwise 
appropriated,  for  the  purpose  of  paying  the  salary 
of  said  commission  and  secretary  for  the  remain- 
der of  the  forty-foui'th  fiscal  year,  and  for  the  for- 
ty-fifth and  forty-sixth  fiscal  years;  and  the  con- 
troller is  hereby  authorized  to  draw  monthly  war- 
rants upon  the  State  treasury  in  favor  of  said 
commission  and  secretary,  in  the  sum  of  five  hun- 
dred dollars  for  each  of  said  commissioners,  and 
the  sum  of  two  hundred  dollars  for  said  secretary. 

Sec.  4.  This  act  shall  tal^e  effect  from  and  after 
its  passage.  [Approved  January  31,  1893;  Stats. 
1S93,  p.  1.] 


796  APPENDIX. 


An  Act  to  provide  for  the  appointment  by  the  Su 
preme  Court     of     five     Commissioners,  to  be 
known  as  Commissioners     of     the     Supreme 
Court,  to  appoint  a  Secretary,  and  to  appropri- 
ate money  therefor. 

§  1.     Supreme   court  commission 

§  2.     Secretary. 

§  3.     Appropriation. 

Section  1.  The  Supreme  Court  of  the  State  of 
California  shall,  immediately  upon  the  expiration 
of  the  term  of  office  of  the  present  Supreme  Court 
commissioners,  appoint  five  persons  of  legal  learn- 
ing and  personal  Avorth  as  commissioners  of  said 
court.  It  shall  be  the  duty  of  said  commissioners, 
under  such  rules  and  regulations  as  said  court  may 
adopt,  to  assist  in  the  performance  of  its  duties, 
and  in  the  disposition  of  the  numerous  causes  now 
pending  in  said  court  undetermined.  The  said 
commissioners  shall  hold  office  for  the  term  of  two 
years  from  and  after  their  appointment,  during 
which  time  they  shall  not  engage  in  the  practice 
of  the  law.  They  shall  each  receive  a  salary  equal 
to  the  salary  of  a  .iudge  of  said  court,  payable  at 
the  same  time  and  in  the  same  manner.  Before 
entering  upon  the  discharge  of  their  duties,  they 
shall  each  talce  an  oath  to  support  the  Constitu- 
tion of  the  United  States  and  the  Constitution  of 
the  State  of  California,  and  to  faithfully  discharge 
I  he  duties  of  the  office  of  commissioner  of  The  Su- 
preme Court  to  the  best  of  their  ability.  The  said 
court  shall  have  power  to  remove  any  and  all 
members  of  said  commission  at  nny  time,  by  an 
order  entered  on  the  minutes  of  said  court,  and  all 
vacancies  in  said  commission  shall  be  filled  in  like 
manner. 

Sec.  2.    Upon  the  appointment  of  said  commis- 


APPENDIX.  797 

sioners,  as  in  this  act  provided,  said  court  is  here- 
by aiuliorized  to  appoint  a  secretary  for  such 
commission,  who  sliall  hold  office  during  the  pleas- 
ure of  the  court,  not  to  exceed  the  term  of  said 
commission,  and  who  shall  have  a  salary  of  tw^o 
hundred  dollars  per  month,  payable  at  the  same 
time  and  in  the  same  manner  as  said  commission. 

Sec.  3.  The  sum  of  sixty-seven  thousand  dol- 
lars is  hereby  appropriated  out  of  any  money  that 
is,  or  may  be,  in  the  State  treasury  not  otherwise 
appropriated,  for  the  purpose  of  paying-  the  salary 
of  said  commission  and  secretary  for  the  remain- 
der of  the  forty-eighth  fiscal  year,  and  for  the 
forty-ninth  and  fiftieth  fiscal  years;  and  the  con- 
troller is  hereby  authorized  to  draw  monthly  war- 
rants upon  the  State  treasury  in  favor  of  said 
commissioners  and  secretary  in  the  sum  of  five 
hundred  dollars  for  each  of  said  commissioners, 
and  in  the  sum  of  tw^o  hundred  dollars  for  said 
secretary. 

Sec.  4.  This  act  sliall  take  effect  from  and  after 
its  passage. 

[Became  a  law,  under    constitutional     provision, 
without  governor's  approval,  March  2,  1897.] 


APPENDIX. 


All  Act  to  provide  that  in  all  Cities  of  over  ten 
tliousaud  inhabitants,  the  Mayor,  or  other 
chief  executive,  shall  not  be  required  to  act  as 
City  Judge,,  or  ex  officio  Judge  of  the  City 
Court,  or  as  Justice  of  the  Peace;  to  provide 
for  the  abolishment  of  such  City  Court,  and 
for  the  transfer  of  the  business  and  properties 
of  said  City  Court  to  the  Justice  of  the  Peace 
of  such  Cities,  and  to  require  such  Justice  to 
finish  such  business,  and  to  repeal  all  special 
acts  in  conflict  herewith. 

§  1.     Duties  of  mayor. 

§  2.    Transfer   of  books,   etc.,   to  justice. 

Defining  duties  of  mayor— Cities  over  ten  thou- 
sand inhabitants. 

Section  1.  In  cities  of  over  ten  thousand  inhab- 
itants, the  mayor,  or  other  chief  executive  thereof, 
shall  not  be  required  to  act  as  justice  of  the  peace, 
or  to  hold  a  city  court,  or  to  act  as  ex  officio  city 
judge,  or  to  perform  any  of  the  duties  of  judge 
of  the  city  courts;  and  all  city  courts  created  by 
law  to  be  held  by  such  mayor,  or  other  chief  exe- 
cutive of  such  cities,  are  hereby  abolished. 
Transfer  of  boolis,  etc.,  to  justice  of  the  peace. 

Sec.  2.  All  books,  dockets,  files,  documents,  pa- 
pers, and  properties  of  every  kind  whatsoever  be- 
longing to  such  city  court,  shall  be  transferred  to 
the  justice  of  the  peace  of  said  city,  provided  foi- 
by  law,  to  hold  the  police  court  of  such  city,  or  it 
there  be  no  such  police  court  therein,  then  to  such 
justice  of  the  peace  therein  as  may  be  designated 
for  such  purpose  by  the  mayor  thereof;  and  such 
justice  of  the  peace  shall  have  jurisdiction  of  all 
matters  heretofore  brought  in  such  city  court,  or 
of  which  said  city  court  had  jurisdiction";  a^ri  it 


APPENDIX.  799 

shall  be  his  duty  to  collect  all  fines  and  charges 
required  by  law  to  be  collected  by  such  city  court, 
and  to  account  for  and  pay  the  same  over  to  the 
treasurer  of  said  city  in  the  same  manner,  and 
at  the  same  times  and  under  such  terms  and  con- 
ditions, as  heretofore  required  of  and  by  said  city 
court.  Said  justice  of  the  peace  shall  complete 
all  such  untiuished  business  as  may  be  transferred 
to  him  from  said  city  court  under  the  provisions 
hereof,  in  the  same  manner  as  heretofore  required 
of  said  city  court. 

Sec.  3.  The  provisions  of  all  acts  and  every  spe- 
cial act  of  the  legislature  which  conflict  in  any 
wise  with  this  act  are  each  and  every  one  hereby 
repealed. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
at  once  after  its  passage.  [Approved  March  8, 
1887;  1887,  51.] 


An  Act  to  confer  upon  the  Superior  Court  of  each 
County,  and  the  Judge  thereof,  the  powers 
heretofore  possessed  by  tlie  District,  County, 
and  Probate  Courts  of  such  county,  and  the 
Judges  thereof. 

§  1.     New  courts. 

§  2.     Trials    to   be   continued. 

Authority  of  old  courts  and  judges  vested  in  new 
courts  and  judges. 
Section  1.  In  all  cases  in  which,  on  the  first  day 
of  January,  eighteen  hundred  and  eighty,  any  au- 
thority or  jurisdiction  was  by  law  vested  in  the 
county  or  probate  court  of  any  county,  or  in  the 
judge  thereof,  or  in  any  district  court  of  such 
county,  or  in  the  judge  thereof,  such  jurisdiction 
and  authoritj'  sliall  hereafter,  while  such  law  con- 


800  APPENDIX. 

tinues  in  force,  be  vested  in  and  exercised  by  the 

Superior  Court  of     such  county,  or  by  a     judge 

thereof. 

Trials  to  be  continued  in  certain  cases. 

Sec.  2.  If  any  judge  of  the  Superior  Court  of 
any  county  was  the  judge  of  the  county,  probate, 
or  district  court  in  and  for  said  county  on  the 
first  day  of  January,  eighteen  hundred  and  eighty, 
and  any  cause,  proceeding,  or  motion,  wholly  or 
partially  tried  before  him  remains  undecided,  the 
Superior  Court,  when  presided  over  by  him,  may 
resume  the  consideration  or  trial  of  such  cause, 
proceeding,  or  motion,  at  the  stage  where  it  was 
suspended  in  such  probate,  county,  or  district 
court,  and  may  complete  such  trial  or  hearing,  or 
determine  such  cause,  motion,  or  proceeding,  as 
if  the  same  had  first  been  brought  or  made  in  such 
Superior  Court. 

Sec.  3.  This  act  shall  take  effect  immediately. 
[Approved  April  3,  1880;  1880,  23  (Ban.  ed.  115).] 


An  Act  authorizing  the  judges  of  the  Superior 
Court  in  all  Counties,  and  Cities  and  Counties, 
having  a  population  of  two  hundred  thousand 
inhabitants  and  over,  to  appoint  a  Secretary. 

Section  1.  In  all  counties,  and  cities  and  coun- 
ties, having  a  population  of  two  hundred  thousand 
inhabitants  and  over,  the  judges  of  the  Superior 
Court  in  such  counties,  and  cities  and  counties, 
may  appoint  a  secretary,  who  shall  receive  a  sal- 
ary of  one  hundred  and  fifty  (.$150)  dollars  per 
month,  and  hold  ofKce  at  their  pleasure,  and  shall 
perform  such  duties  as  may  be  required  of  him  by 
the  court  or  the  judges  thereof.  Snid  salary  shall 
be  audited,  alloAved,  and  paid  out  of  the  general 
fund  of  such  counties,  and  cities  and  counties. 


APPENDIX.  801 

Sec.  2.  This  act  shall  take  effect  from  and  after 
its  passage.  'Approved  March  2(3,  181)5;  Stats. 
1895,  98.] 


An  Act  to  provide  one  additional  Judge  of  the  Su- 
perior Court  of  the  County  of  Alameda. 

Section  1.  Within  ten  days  after  the  passage  of 
this  act  the  governor  shall  appoint  one  additional 
judge  of  the  Superior  Court  of  the  county  of  Ala- 
meda, who  shall  hold  office  until  the  first  Monday 
after  the  first  day  of  January,  A.  D.  eighteen  hun- 
dred and  ninety-five;  and  at  the  next  general  elec- 
tion one  judge  of  said  court,  in  addition  to  the 
present  number  provided  by  law  for  said  county, 
shall  be  elected,  to  hold  office  for  the  term  pre- 
scribed by  the  constitution  and  by  law. 

Sec.  2.  The  salary  of  said  one  additional  judge 
shall  be  the  same  in  amount,  and  shall  be  paid  at 
the  same  time  and  in  the  same  manner  as  that  of 
the  other  judges  of  the  Superior  Court  of  said 
county  now  authorized  by  law. 

Sec.  3.  This  act  shall  take  effect  immediately 
from  and  after  its  passage.  [Approved  February 
13,  1893;   Stats.  1893,  3.] 


An  Act  to  increase  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  Fresno,  State 
of  California,  and  for  the  appointment  of  an 
additional  Judge. 

One  additional  judge. 

Section    1.    The   number   of   the   judges   of   the 
Superior  Court  of  the  county  of  Fresno,  State  of 
California,  is  hereby  increased  from  one  to  two. 
Governor  appoint— Term  of  office. 


802  APPENDIX. 

Sec.  2.  Within  ten  days  after  the  passage  of 
this  act,  the  governor  shall  appoint  one  additional 
judge  of  the  Superior  Court  of  the  county  of  Fres- 
no, State  of  California,  who  shall  hold  office  until 
the  lirst  Monday  after  the  first  day  of  January, 
A.  D.  eighteen  hundred  and  eighty-nine.  At  the 
next  general  election,  one  judge  of  the  Superior 
Court  of  said  county  shall  be  elected  in  said  coun- 
ty, who  shall  be  the  successor  of  the  judge  ap- 
pointed hereunder,  to  hold  office  for  the  term  pre^ 
scribed  by  the  constitution  and  by  law. 
Salary. 

Sec.  3.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount,  and  paid  at  the  same  time 
and  in  the  same  manner,  as  the  salary  of  the  other 
judge  of  the  Superior  Court  of  said  county  now 
authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  8, 
1887;  1887,  57.] 


An  Act  to  facilitate  the  disposition  of  business  in 
the  Superior  Court  of  Fresno  County,  by  the 
appointment  and  election  of  a  third  Judge  of 
said  Court. 

Section  1.  The  number  of  judges  of  the  Supe- 
rior Court  of  the  county  of  Fresno  Is  hereby  in- 
creased from  two  to  three,  subject  to  the  right  of 
the  legislature  to  repeal  this  act,  as  hereinafter 
provided. 

Sec.  2.  Within  ten  days  after  the  passage  of 
this  act,  the  governor  shall  appoint  one  additional 
judge  of  the  Superior  Court  of  the  county  of  Fres- 
no, State  of  California,  who  shall  hold  office  until 
the  first  Monday  after  the  first  day  of  January, 


APPENDIX.  803 

A.  D.  eighteen  luindred  and  ninety-five.  At  the 
next  general  election  a  judge  of  the  Superior 
Court  of  said  county  of  Fresno  shall  be  elected 
in  said  county  to  succeed  the  judge  so  appointed, 
and  the  judge  so  elected  shall  hold  such  othce  for 
the  term  prescribed  by  the  constitution  and  by 
law,  subject  to  the  right  of  the  legislature  of  said 
State,  hereby  reserved,  to  abolish  the  office  of 
said  third  judge  whenever,  in  the  judgment  of 
said  legislature,  the  public  interest  no  longer  re- 
quires it. 

Sec.  3.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount,  and  shall  be  paid  at  the 
same  time  and  in  the  same  manner,  as  the  salary 
of  the  other  judges  of  said  court  in  said  county, 
as  now  authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  10, 
1893;  Stats.  1893,  p.  125.] 


An  Act  to  reduce  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  Fresno  from 
three  to  two. 

Section  1.  The  number  of  judges  of  the  Supe- 
rior Court  of  the  county  of  Fresno  is  hereby  re- 
duced from  three  to  two. 

Sec.  2.  This  act  shall  take  effect  at  the  expira- 
tion of  the  term  of  the  judge  of  said  court  whose 
term  first  expires,  and  in  case  a  vacancy  occur  in 
any  term  prior  to  the  first  Monday  after  tne  first 
dny  of  .lanunry.  eighteen  hundred  and  ninety-sev- 
en, this  act  shall  take  effect  immediately. 

Sec.  3.  All  acts  and  parts  of  acts  in  conflict 
with  the  provisions  of  this  act  are  hereby  repeal- 
ed. [Approved  March  20,  1895;  Stats.  1895,  p. 
15(5.1 


8(H  APPENDIX. 


An  Act  to  provide  for  the  appointment  and  elec- 
tion of  one  additional  Judge  for  the  County  of 
Humboldt. 

Section  1.  Within  ten  days  after  the  passage  of 
this  act  the  governor  shall  appoint  one  additional 
judge  of  the  Superior  Court  of  the  county  of  Hum- 
boldt, vrho  shall  hold  otiice  until  the  first  Monday 
after  the  first  day  of  January,  Anno  Domini  eight- 
een hundred  and  ninety-seven;  and  at  the  next 
general  election,  and  at  the  general  election  every 
six  years  thereafter,  one  judge  of  said  court  in  ad- 
dition to  the  present  number  provided  by  law  for 
said  county  shall  be  elected,  to  hold  office  for  the 
term  prescribed  by  the  constitution  and  by  law. 

Sec.  2.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount,  and  shall  be  paid  at  the 
same  time  and  in  the  same  manner  as  that  of  the 
other  judges  of  the  Superior  Court  of  said  county 
now  authorized  by  law. 

Sec.  3.  This  act  shall  take  effect  immediately 
from  and  after  its  passage.  [Approved  March  8» 
1895;  Stats.  1895,  p.  27.] 


An  Act  to  increase  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  Los  Angeles. 
State  of  California,  and  for  the  appointment  of 
such  additional  Judges. 

Appointment  of  superior  judges  for  Los  Angeles 
County. 
Section  1.    The  nuin1)er  of  judges  of  the  superior 
court  of  the  county  of  Los  Angeles.  State  of  Cali- 
fornia, is  hereby  increased  from  four  to  six. 


APPENDIX.  805 

Sec.  2.  Within  ten  days  after  the  passage  of  this 
act,  the  Governor  shall  appoint  two  additional 
judges  of  the  superior  court  of  the  county  of  Los 
Angeles,  State  of  California,  who  shall  hold  otfice 
until  the  first  Monday  after  the  first  day  of  Janu- 
ary, A.  D.  eighteen  hundred  and  ninety-one.  At 
the  next  general  election,  two  judges  of  the  super- 
ior court  of  said  county  shall  be  elected  in  said 
county,  who  shall  be  successors  of  the  judges  ap- 
pointed hereunder,  to  hold  office  for  the  terms  pre- 
scribed in  the  constitution  and  by  law. 
Salaries. 

Sec.  3.  The  salaries  of  such  additional  judges 
shall  be  the  same  in  amount,  and  be  paid  in  the 
same  manner  and  at  the  same  time,  as  the  salaries 
of  the  other  judges  of  the  superior  court  of  said 
county  now  authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  11, 
1889;  1889,  130.] 


An  Act  to  increase  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  Los  Angeles, 
State  of  California,  and  for  the  appointment  of 
such  additional  Judges, 

Two  additional  judges  of  superior  court  for  Los 
Angeles  County. 

Section  1.    The  number  of  judges  of  the  superior 
court  of  the  county  of  Los  Angeles,  State  of  Cali- 
fornia, is  hereby  increased  from  two  to  four. 
Governor  to  appoint,  Avhen. 

Sec.  2.  Within  ten  days  after  the  passage  of  this 
act,  the  Governor  shall  appoint  two  additional 
judges  of  the  superior  court  of  the  county  of  Los 
Angeles,  State  of  California,  who  shall  hold  of- 
fice until  the  first  Monday  after  the  first  daj^  of 
Code  Civ.  Proc— 68. 


806  APPENDIX. 

Jauuary,  A.  D.  eighteen  huudred  and  eighty-nine. 
At  the  next  general  election,  two  judges  of  the 
superior  court  of  said  county  shall  be  elected  in 
said  county,  who  shall  be  successors  of  the  judges 
appointed  hereunder,  to  hold  ottice  for  the  term 
prescribed  by  the  constitution  and  by  law. 
Salaries. 

Sec.  3.  The  salaries  of  said  additional  judges 
shall  be  the  same  in  amount,  and  be  paid  at  the 
same  time  and  in  the  same  manner,  as  the  salar- 
ies of  the  other  judges  of  the  superior  court  of  said 
county  now  authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  February 
7,  1887;  1887,  1.] 


An  Act  ot  provide  an  additional  Judge  of  the  Su- 
perior Court  for  the  County  of  Mono. 

Additional  judge  of  the  superior    court    of  Mono 
county. 

Section  1.  Within  ten  days  after  the  passage  of 
this  act  the  Governor  shall  appoint  an  additional 
judge  of  the  superior  court  of  the  county  of  Mono, 
who  shall  qualify  forthwith,  and  shall  hold  said 
office  until  the  first  Monday  after  the  first  day  of 
January,  A.  D.  eighteen  huudred  and  eighty-one; 
and  at  the  next  general  election  a  judge  of  the  su- 
perior court  of  said  county  shall  be  elected,  to  bold 
office  for  the  term  of  four  years  from  the  first  Mon- 
day after  the  first  day  of  January,  A.  D.  eighteen 
hundred  and  eighty-one. 
Salary. 

Sec.  2.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount,  and  sliall  be  paid  in  the 
same  manner,  as  that  of  the  judge  of  the  superior 
(Miirt  of  said  coniity  now  autliorized  by  law. 


APPENDIX.  807 

Sec.  3.  This  act  shall  be  in  force  from  and  after 
its  approval  by  the  Governor.  [Approved  April  16, 
1880;  1880,  99  (Ban.  ed.  335);  repealed  March  9, 
1883;  1883,  62.] 


An  Act  to  provide  one  additional  Judge  of  the  Su- 
perior Court  of  the  County  of  Sacramento. 

Section  1.  The  number  of  judges  of  the  superior 
court  of  the  county  of  Sacramento  is  hereby  in- 
creased from  two  to  three. 

Sec.  2.  Within  ten  days  after  the  passage  of 
this  act  the  Governor  shall  appoint  one  additional 
judge  of  the  superior  court  of  tlie  county  of  Sacra- 
mento, who  shall  hold  office  until  the  first  Monday 
after  the  first  day  of  January,  Anno  Domini  eigh- 
teen hundred  and  ninety-seven;  and  at  the  next 
general  election,  to  be  held  in  November,  Anno 
Domini  eighteen  hundred  and  ninety-six,  one 
judge  of  paid  court,  in  addition  to  the  present  num- 
ber provided  by  law  for  said  county,  shall  be 
elected  to  hold  office  for  the  term  prescribed  by 
the  constitution  and  by  law. 

Sec.  3.  The  salary  of  said  one  additional  judge 
shall  be  the  same  in  amount,  and  shall  be  paid 
at  the  same  time  and  in  the  same  manner,  as  that 
of  the  other  judges  of  the  superior  court  of  said 
county  now  authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  Immediately 
from  and  after  its  passage.  [Approved  March  12, 
1895;  Stats.  1895,  p.  48.] 

An  Act  to  provide  an  additional  Judge  of  the  Su- 
perior Court  of  the  County  of  San  Bernardino. 

Two  judges. 

Section  1.  The  number  of  judges  of  the  Superior 
court  of  the  county  of  San  Bernardino  is  hereby 
increased  from  one  to  two. 


808  APPENDIX. 

Governor  to  appoint,  when. 

Sec.  2.  Witliiu  ten  days  after  the  passage  of  this 
act,  the  Governor  shall  appoint  an  additional  judge 
of  the  superior  court  of  said  county  of  San  Ber- 
nardino, who  shall  hold  office  until  the  first  Mon- 
day after  the  first  day  of  January,  A.  D.  eighteen 
hundred  and  eighty-nine;  and  at  the  next  general 
election,  a  .ludge  of  said  court  of  said  county  shall 
l>e  elected  to  liold  otfice  for  the  term  prescribed  by 
the  constitution  and  by  law. 
Salary  of. 

Sec.  3.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount,  and  shall  be  paid  at  the 
same  time  and  in  the  same  manner,  as  that  of  the 
other  judge  of  said  superior  court  of  said  county. 

Sec.  4.  This  act  shall  talce  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  5, 
1887;  1887,  19.] 


An  Act  to  increase  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  San  Diego, 
State  of  California,  and  for  the  appointment  of 
such  additional  Judges. 

Increase  of  judges. 

Section  1.    The  number  of  judges  of  the  superior 
court  of  the  county  of  San  Diego,  State  of  Cali- 
fo)'nia,  is  herebv  increased  from  one  (1)  to  three 
(3). 
Appointment  of  additional  judges. 

Sec.  2.  Witl\in  ten  days  after  the  passage  of  this 
act,  the  Governor  shall  appoint  two  additional 
judges  of  the  superior  court  of  the  county  of  San 
Diego.  State  of  California,  who  shall  hold  ofl^ce 
until  the  first  INfonday  after  the  first  day  of  Janu- 
ary, A.  D.  eighteen  hundred  and  ninety-one.  At 
the  next  general  election,  two  judges  of  the  super- 


APPENDIX.  809 

ior  court  of  said  coiinty  shall  be  elected  in  said 
county,  who  shall  be  successors  of  the  judges  ap- 
pointed hereunder,  to  hold  otfice  for  the  term  pre- 
scribed by  the  constitution  and  by  law. 
Salaries. 

Sec.  o.  The  salaries  of  said  additional  judges 
shall  be  the  same  in  amount,  and  be  paid  at  the 
same  time  and  in  the  same  manner,  as  the  sal- 
ary of  the  other  judge  of  the  superior  court  of 
said  county  now  authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  February 
8,  1889;  1889,  5.] 


An  Act  to  reduce  the  number  of  Judges  of  the  Su- 
perior Court  of  San  Diego  County  to  two. 

Section  1.  The  number  of  superior  judges  in 
San  Diego  county  is  hereby  reduced  to  two;  pro- 
vided, that  such  reduction  shall  not  affect  any 
judge  who  has  been  elected  in  said  county. 

Sec.  2.  This  act  shall  take  effect  immediately. 
[Approved  March  5,  1895;  Stats.  1895,  24.] 


An  Act  providing  for  an  additional  Superior  Judge 
for  the  County  of  San  Luis  Obispo,  and  provid- 
ing for  his  appointment  and  salary. 

Increase  of  judges. 

Section  1.    The  number  of  judges  of  the  superior 
court  of  tlie  county  of  San  Luis  Obispo,  State  of 
California,  is  hereby  increased  from  one  (1)  to  two 
(2). 
Appointipent. 

Sec.   2.    Within  ton  days  after  the  passage  of 
this  act,  the  Governor  shall  appoint  one  additional 


810  APPENDIX. 

judge  of  the  superior  court  of  the  county  of  Sau 
Luis  Obispo,  State  of  California,  who  shall  hold 
office  until  the  first  Monday  after  the  first  day  of 
January,  Anno  Domini  one  thousand  eight  hun- 
dred and  ninety-one.  At  the  next  general  elec- 
tion, one  judge  of  the  superior  court  of  said  coun- 
ty shall  be  elected  in  said  county,  who  shall  be 
the  successor  of  the  judge  appointed  hereunder, 
to  hold  office  for  the  term  prescribed  by  the  con- 
stitution and  by  law. 
Salary. 

Sec.  3.  Such  additional  judge  of  the  superior 
court  shall  receive  such  salary  as  may  be  al- 
lowed by  law  at  the  time  of  his  appointment  and 
qualification,  which  shall  be  paid  in  the  same  man- 
ner as  the  salary  of  the  judge  of  the  superior 
court  of  said  county  is  now  paid. 

Sec.  4.  This  act  shall  take  effect  immediately. 
[Approved  February  8,  1889;  1889,  6.] 


An  Act  providing  that  the  oflice  of  the  judge  of  the 
Superior  Court  of  the  County  of  San  Luis 
Obispo,  State  of  California,  now  held  by  Judge 
D.  S.  Gregory,  shall  cease  upon  a  vacancy  oc- 
curring therein. 

Vacancy  in  office  of  superior  judge,  San  Luis 
Obispo  County,  not  to  be  filled. 

Section  1.  Upon  the  office  of  the  judge  of  the 
superior  court  of  the  county  of  San  Luis  Obispo, 
State  of  California,  now  held  by  Judge  D.  S.  Greg- 
ory, becoming  vacant,  by  resignation  or  otherwise, 
such  office  shall  cease;  and  thereafter  there  shall 
be  but  one  judge  of  the  superior  court  in  and  for 
the  county  of  San  Luis  Obispo,  State  of  California. 

Sec.  2.  This  act  shall  take  effect  imm'ediately. 
[Approved  March  19,  1889;  1889,  333.] 


APPENDIX.  811 


An  Act  to  increase  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  Santa  Clara, 
and  to  provide  for  the  appointment  of  an  ad- 
ditional Judge. 

Section  1.  The  number  of  judges  of  the  super- 
ior court  of  the  county  of  Santa  Clara  is  hereby 
increased  from  two  to  three. 

Sec.  2.  Within  ten  days  after  the  passage  of 
this  act  the  Governor  shall  appoint  one  additional 
judge  of  the  superior  court  of  the  county  of  Santa 
Clara,  State  of  California,  who  shall  hold  oftice 
until  the  first  Monday  after  the  first  day  of  Janu- 
ary, Anno  Domini  eighteen  hundred  and  ninety- 
nine.  At  the  next  general  election  a  judge  of  the 
superior  court  of  the  said  county  shall  be  elected 
in  said  county,  who  shall  be  the  successor  of  the 
judge  appointed  hereunder,  to  hold  office  for  the 
term  prescribed  by  the  Constitution  and  by  law. 

Sec.  3.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount  and  shall  be  paid  at  the 
same  time,  and  in  the  same  manner  as  the  salary 
of  the  other  judges,  of  the  superior  court  of  the 
said  county,  now  authorized  by  law. 

Sec.  4.  This  act  shall  talce  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  February 
IG,  1897;  Stats.  1897,  c.  19.  In  effect  immedi- 
ately.] 


An  Act  providing  for  the  election  or  appointment 
of  a  separate  Judge  of  the  Superior  Court  for 
each  of  the  Counties  of  Yuba  and  Sutter,  and 
fixing  and  providing  for  the  payment  of  the 
salary  of  each  of  such  Judges. 

Section  1.    At  the  general  election  to  bo  held  in 
the  year  nineteen  hundred  and  two,  and  at  the 


812  APPENDIX. 

general  election  every  six  years  thereafter,  there 
shall  be  elected  in  the  county  of  Yuba,  one  judge 
of  the  superior  court  of  the  said  county  of  Yuba, 
and  in  the  county  of  Sutter,  one  judge  of  the  su- 
perior court  of  the  said  county  of  Sutter;  each  of 
such  judges  shall  hold  such  office  in  and  for  his 
respective  county  for  the  term  prescribed  by  the 
Constitution  and  by  law. 

Sec.  2.  Should  a  vacancy  occur  from  any  cause 
in  the  office  of  judge  of  the  superior  courts  of  the 
counties  of  Yuba  and  Sutter  at  any  time  before 
the  general  election  to  be  held  in  the  year  nine- 
teen hundred  and  two,  the  Governor  of  this  State 
shall  immediately  appoint  one  judge  of  the  super- 
ior court  of  the  county  of  Y^uba,  and  one  judge 
of  the  superior  court  of  the  county  of  Sutter,  who 
shall  each  hold  office  until  the  first  Monday  after 
the  first  day  of  January  next  succeeding  the  first 
general  election  held  after  his  appointment,  and 
at  such  general  election,  his  successor  shall  be 
elected  to  hold  office  for  the  term  prescribed  bj- 
the  Constitution  and  by  laAV. 

Sec.  3.  The  judge  so  elected  for  the  county  of 
Y'uba  shall  receive  an  annual  salary  of  four  thous- 
and dollars,  and  the  judge  so  elected  or  appoint- 
ed for  the  county  of  Sutter  shall  receive  an  an- 
nual salary  of  four  thousand  dollars,  and  such  sal- 
ary shall  be  paid  in  each  case,  one  half  by  the 
State,  and  the  other  half  by  the  county  in  which 
such  court  is  situated,  respectively,  and  at  the 
times  and  in  the  mnnner  now  provided  for  the  pay- 
ment of  such  salary  in  other  counties. 

Sec.  4.  All  acts  and  parts  of  acts  in  conflict 
with  this  act  are  hereby  repealed. 

See.  .5.  This  act  shall  take  effect  immediately. 
[Approved  March  2,  1897.] 


APPENDIX.  813 


A  Bill  to  increase  the  number  of  Judges  of  the 
Superior  Court  of  the  County  of  Tulare,  and  to 
provide  for  the  appointment  of  an  additional 
Judge. 

Section  1.  The  number  of  judges  of  the  superior 
court  of  the  county  of  Tulare  is  hereby  increased 
from  one  to  two. 

Sec.  2.  Within  ten  days  after  the  passage  ot 
this  act,  the  Governor  shall  appoint  one  additional 
judge  of  the  superior  court  of  the  county  of  Tu- 
lare, State  of  California,  who  shall  hold  office  un- 
til the  first  Monday  after  the  first  day  of  Janu- 
ary, A.  D.  eighteen  hundred  and  ninety-three.  At 
the  next  general  election,  a  judge  of  the  superior 
court  of  said  county,  shall  be  elected  in  said  coun- 
ty, who  shall  be  the  successor  of  the  judge  ap- 
pointed hereunder,  to  hold  oflice  for  the  term  pre- 
scribed by  the  Constitution  and  by  law. 

Sec.  3.  The  salary  of  said  additional  judge  shall 
be  the  same  in  amount,  and  shall  be  paid  at  the 
same  time  and  in  the  same  manner,  as  the  salary 
of  the  other  judge  of  the  superior  court  of  said 
county  now  authorized  by  law. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  10, 
1891;  Stats.  1891,  61.] 


An  Act  to  reduce  the  number  of  Judges  of  the  Su- 
perior Court  of  the  County  of  Tulare  from  two 
to  one. 

Section  1.  The  number  of  judges  of  the  superior 
court  of  the  county  of  Tulare,  State  of  California, 
is  hereby  reduced  from  two  to  one;  provided,  that 
the  provisions  of  this  section  shall  not  affect  either 
of  the  present  judges  of  said  superior  court. 


814  APPENDIX. 

Sec.  2.  No  election  of  a  judge  of  the  superior 
court  sliall  be  held  in  said  county  prior  to  the 
general  election  in  the  year  one  thousand  eight 
hundred  and  ninety-eight,  and  no  vacancy  in  the 
office  of  judge  of  the  superior  court  of  said  county 
occurring  on  or  prior  to  the  first  Monday  after 
the  first  day  of  January,  in  the  year  one  thousand 
eight  hundred  and  ninety-seven  shall  be  tilled  by 
appointment  or  otherwise,  unless  necessary  to 
;maintain  one  judge  of  said  superior  court. 

Sec.  o.  All  acts  and  parts  of  acts  in  conflict  with 
the  provisions  of  this  act  are  hereby  repealed. 
[Approved  March  20,  1895;  Stats.  1895,  128.] 


ESTATES  OF  DECEASED  PERSONS. 

§  1.    Right  to  collect  deposit. 
§  2.    Power  of  bank. 

An  Act  to  amend  an  Act  entitled  "An  Act  to  au- 
thorize the  Husband  or  Wife,  or  next  of  kin, 
of  a  Deceased  I^erson,  to  collect  and  receive  of 
any  Savings  Bank  any  deposit  in  such  bank, 
when  the  same  does  not  exceed  the  sum  of 
three  hundred  dollars,"  approved  February  18, 
1874.     [Stats.  1895,  32.] 

Section  1.  Section  one  of  said  act  is  hereby 
amended  so  as  to  read  as  follows: 

Section  1.  The  surviving  husband  or  wife  of  any 
deceased  person,  or  if  no  husband  or  wife  be  liv- 
ing, then  the  next  of  kin  of  such  decedent,  may, 
withont  procuring  letters  of  administration,  collect 
of  any  bank  any  sum  which  said  deceased  may 
have  left  on  deposit  in  such  bank  at  the  time  of 
his  or  her  death;  provided,  said  deposit  shall  not 
exceed  the  sum  of  five  hundred  dollars. 


APPENDIX.  815 

Sec.  2.  Section  two  of  said  act  is  hereby  amend- 
ed so  as  to  read  as  follows: 

Section  2.  Any  bank,  upon  receiving  an  affida- 
vit stating-  that  said  depositor  is  dead,  and  that 
affiant  is  tlie  surviving  husband  or  wife,  as  the 
case  may  be,  or  stating  that  said  decedent  left  no 
husband  or  wife,  and  that  affiant  is  next  of  kin 
of  said  decedent,  and  entitled  to  distribution,  and 
that  the  whole  amount  that  decedent  left  on  de- 
posit in  any  and  all  banks  of  deposit  in  this  State 
does  not  exceed  the  sum  of  hve  hundred  dollars, 
may  pay  to  said  affiant  any  deposit  of  said  dece- 
dent, if  the  same  does  not  exceed  the  sum  of  five 
hundred  dollars,  and  the  receipt  of  such  affiant 
shall  be  a  sufficient  acquittance  therefor. 

Sec.  3.  Any  person  who  shall  make  a  false  affi- 
davit in  regard  to  the  matters  specified  in  this 
act,  shall  be  deemed  to  be  guilty  of  perjury. 

Sec.  4.  This  act  shall  take  effect  from  and  after 
its  passage. 

[Became  a  law,  under  constitutional  provision, 

\\  iihout  Governor's  approval,    March  8,    1895. 

The  original  act  was  the  same  except  that  the 

amount  was  $300.] 


An  Act  supplementary  to  an  Act  entitled  an  Act 
to  regulate  the  Settlement  of  the  Estates  of  De- 
ceased Persons,  passed  May  first,  eighteen  hun- 
dred and  fifty-one. 

Section  1.  When  it  shall  appear,  upon  the  settle- 
ment of  the  accounts  of  any  executor  or  adminis- 
trator, that  debts  against  the  deceased  have  been 
paid  without  the  affidavit  and  allowance  prescrib- 
ed by  section  one  hundred  and  thirty-one  of  the 
act  to  which  this  act  is  supplementary,  and  it  shall 
be  proven  by  competent  evidence  to  the  satisfac- 
tion of  the  probate  courts  that  such  debts  were 


816  APPENDIX. 

justly  due,  were  paid  in  good  faith,  that  the 
amount  paid  was  the  true  amount  of  such  indebt- 
edness over  and  above  all  payments  of  set-oft's, 
and  that  the  estate  is  solvent,  it  shall  be  the  duty 
of  the  said  court  to  allow  the  said  sums  so  paid 
in  the  settlement  of  said  accounts. 

Sec.  2.  This  act  shall  go  into  effect  from  and  af- 
ter its  passage.  [Approved  March  30,  1872;  1871-2, 
GOG.] 


APPENDIX.  817 


A.U  Act  for  the  Relief  of  Insolvent  Debtors,  for  the 
protection  of  Creditors,  and  for  the  punish- 
ment of  Fraudulent  Debtors. 

[Approved  ^larch  2(^,  181)5;  in  effect  sixty  days  af- 
ter approval;  State.  1895,  131.] 

§    1.    Who  may  be  discharged. 

§    2.    Voluntary  insolvent— Petition. 

§    3.     Schedule. 

§    4.     What  to  contain. 

§    5.     Verification. 

§    6.     Order   declaring   insolvent— Publication— Receiver. 

§    7.     Publication— Service— Costs. 

§    8.    Voting— Exceptions   to   claims— Mortgage   claimant. 

§    9.     Involuntary— Petition— Bond. 

Order  to  show  cause. 

Service— Publication. 

Demurrer— Answer— Trial. 

Order— Schedule— Verification— Assignee. 

Publication  of  order— Service— Costs. 

Trial. 

§  16.     When   service   cannot   be   made— Inventory, 
§  17.     Other  property— Appeal. 
§  18.    Improper  affidavits  and  bonds. 
8  19.    Assignees,  election  of  and  bond. 
§  20.     Failure  to  elect. 
§  21.     Clerlr     to     convey     to     assignee— Attachments     l<.  1^; 

ments. 
§  22.    Assignee  may  recover  all  of  estate. 
S  23.     Assignment  to  be  recorded. 
§  24.     Assignee  may  resign. 
§  25.     Power  of  assignee. 
§  26.     Insolvent  to  deliver  property  to  court. 
§  27.    Penalty. 
§  28.     Proceedings. 

§  29.     Converting  estate  into  money. 
S  30.     Perishable  property. 
§  31.    Rights  of  action. 
§  32.     Expenses. 
§  33.    Account  of  assignee. 
§  34.    Account  on  motion  of  creditors. 
§  35.    Pro  rata  dividends. 
§  36.     Dividends. 
§  37.     Refusal  to  render  account. 

Code  Civ.  Proc— 69. 


818  APPENDIX. 

§  38.  Preparatory  to  final  account. 

^  39.  Paitnerships. 

§  40.  Corporatious. 

§  41.  Proof  of  debts. 

§  42.  Chaiteis  wrongfully  taken. 

§  43.  Debtor  as  an  iudorser,  etc. 

§  44.  Coniingent  debts. 

§  45.  Guaiantor. 

§  46.  Rents,   etc. 

5  47.  Mutual  accounts. 

§  48.  Mortgage. 

§  49.  R  gilt  of  action  waived  by  creditor. 

§  iiO.  Unlawful  preference. 

§  51.  Examination  of  debtor. 

§  52.  Discharge — Notice. 

§  53.  When  discharge  shall  not  be  granted. 

§  54.  Opposition  to  discharge. 

§  55.  Certificate  of  discharge. 

§  56.  Fraudulent  debts,  etc. 

§  57.  Effect   of   discharge. 

§  58.  Refusal   of  discharge. 

§  59.  Fraudulent  piefereuces  and  transfers. 

§  60.  Penalty  for  wrongful   act. 

§  61.  Death  of  debtor. 

§  32.  Statute    of   limitations. 

§  63.  Attorney. 

§  64.  Exempt  property. 

§  65.  What  is  commencement  of  proceeding. 

§  66.  Words. 

§  67.  Receiver  may  be  appointed. 

§  68.  Contempt. 

§  G9.  Costs. 

§  70.  Dismissal    of    proceedings. 

§  71.  Appeal. 

§  72.  Repeal  of  prior  acts. 

ARTICLE  I. 
General  Subject  of  the  Act. 

1.  Every  insolrent  debtor  may,  upon  compli- 
ance with  the  provisions  of  this  act,  be  discharged 
from  his  debts  and  liabilities.  This  act  shall  be 
known  and  may  be  cited  as  the  Insolvent  Act  of 
eifrhteen  hundred  and  ninety-five. 

ARTICLE  II. 
Voluntary  Insolvency. 

2.  An  insolvent  debtor,  owing  debts  exceeding 
in  amount  the  sum  of  three  hundred  dollars,  may 


APPENDIX.  819 

apply  by  petition  to  the  superior  conrt  of  the 
county,  or  city  and  county,  in  which  he 
has  resided  for  six  months  next  preceding 
the  filing  of  his  petition  to  be  discharged 
from  his  debts  and  liabilities.  In  his  pe- 
tition he  shall  set  forth  his  place  of  residence,  his 
inability  to  pay  all  his  debts  in  full,  his  willing- 
ness to  surrender  all  his  estate  and  effects  for  the 
benefit  of  his  creditors,  and  his  desire  to  obtain 
a  discharge  from  his  debts  and  liabilities,  and 
shall  annex  thereto  a  schedule  and  inventory 
and  Talnation.  in  compliance  with  the  provisions 
of  this  act.  The  filing  of  such  petition  shall  be  an 
act  of  insolvency,  and  thereupon  such  petitioner 
shall  be  adjudged  an  insolvent  debtor, 

3.  Said  sciiedule  must  contain  a  full  and  true 
statement  of  all  his  debts  and  liabilities,  exhibit- 
ing to  the  best  of  his  knowledge  and  belief  to 
whom  said  debts  or  liabilities  are  due,  the  place 
of  residence  of  his  creditors,  and  the  sum  due 
each;  the  nature  of  the  indebtedness  or  demand, 
whether  founded  on  written  security,  obligation, 
contract,  or  otherwise;  the  true  cause  and  consid- 
eration thereof,  and  the  time  and  place  when  and 
where  such  indebtedness  accrued,  and  a  statement 
of  any  existing  pledge,  lien,  mortgage,  judgment, 
or  other  security  for  the  payment  of  the  same; 
also,  an  outline  of  the  facts  touching  any  liability, 
directly  or  indirectly,  in  the  nature  of  any  right 
of  action  against  the  insolvent  by  any  one. 

4.  Said  inventory  must  contain  an  accurate  de- 
scription of  all  the  estate,  both  real  and  personal, 
of  the  petitioner,  including  his  homestead,  if  any, 
and  all  property  exempt  by  law  from  execution, 
and  where  the  same  is  situated,  and  all  encum- 
brances thereon;  also,  an  outline  of  the  facts 
touching  any  right  of  action  in  favor  of  the  insol- 
vent against  any  one. 

5.    The  petition,  schedule,  and  inventory  must 


820  APPENDIX. 

be  verified  by  the  affidavit  of  the  petitioner  an- 
nexed thereto,  and  shall  be  in  form  substantially 

as  follows:    I,  ,  do  solemnly  swear  that  the 

schedule  and  inventory  now  delivered  by  me  con- 
tain a  full,  perfect,  and  true  discovery  of  all  the 
estate,  real,  personal,  and  mixed,  goods  and  ef- 
fects, to  me  in  any  way  belonging;  all  such  debts 
as  are  to  me  owing,  or  to  any  person  or  persons  in 
trust  for  me.  and  all  securities  and  contracts,  and 
contracts  whereby  any  money  may  hereafter  be- 
come payable,  or  any  benefit  or  advantage  ac- 
crue to  me  or  to  my  use,  or  to  any  other  person 
or  persons  in  trust  for  me;  that  the  schedule  and 
inventory,  respectively,  contain  a  clear  outline  of 
the  facts  touching  any  known  right  of  action 
agiiinst  me  by  any  one,  and  an  outline  of  the  facts 
touching  all  rights  of  action  in  my  favor  against 
any  one;  that  I  have  no  lands,  money,  stocl?;,  or 
estate,  reversion,  or  expectancy,  besides  that  set 
forth  in  my  schedule  and  inventory;  that  I  have 
in  no  instance  created  or  aclinowledged  a  debt  for 
;)  greater  sum  than  I  honestly  and  truly  owe; 
that  I  have  not,  directly  or  indirectly,  sold,  or 
otherwise  disposed  of,  or  concealed,,  any  part  of 
my  property,  effects,  or  contracts;  that  I  have  not 
in  any  way  compounded  with  my  creditors  where- 
by to  secure  the  same,  or  to  receive  or  to  expect 
any  profit  or  advantage  therefrom,  or  to  defraud 
or  deceive  any  creditor  to  whom  I  am  indebted 
in  any  manner.     So  help  me  God. 

6.  Upon  receiving  and  filing  such  petition, 
schedule,  and  inventory,  the  court  shall  make  a-n 
order  declaring  the  petitioner  insolvent,  and  di- 
recting the  Sheriff  of  the  county,  or  city  and  coun- 
ty, to  take  possession  of  all  the  estate,  real  and 
personal,  of  the  debtor,  except  such  as  may  be  by 
law  exempt  from  execution,  and  of  all  his  deeds, 
vouchers,  books  of  account,  and  papers,  and  to 
keep  the  same  safely  until  the  appointment  of  an 
assignee.     Said  order  shall  further  forbid  the  pay- 


APPENDIX.  821 

ment  of  any  debts  and  the  delivery  of  any  prop- 
erty belonging  to  such  debtor,  to  him,  or  for  his 
use,  and  the  transfer  of  anj^  property  by  him;  and 
shall  further  appoint  a  time  and  place  for  a  meet- 
ing of  the  creditors,  to  prove  their  debts  and 
choose  an  assignee  of  the  estate,  and  shall  desig- 
nate a  newspaper  of  general  circulation  published 
in  the  county,  or  city  and  county,  in  which  the  pe- 
tition is  tiled,  if  there  be  one,  and  if  there  be  none, 
in  a  newspaper  published  nearest  to  such  county, 
or  city  and  county,  in  w^hich  publication  of  such 
order  shall  be  made.  The  time  appointed  for  the 
election  of  an  assignee  shall  not  be  less  than  eight 
nor  more  than  ten  days  from  the  date  of  the  order 
of  adjudication.  Upon  the  granting  of  said  order, 
all  proceedings  against  the  said  insolvent  shall  be 
stayed.  When  a  receiver  is  appointed  or  an  as- 
signee chosen,  as  provided  for  in  this  act,  the 
Sheriff  shall  thereupon  deliver  to  such  receiver  or 
assignee,  as  the  case  may  be,  all  the  property  and 
assets  of  the  insolvent  which  have  come  into  his 
possession,  and  shall  be  allowed  and  paid  as  com- 
pensation for  his  services  the  same  expenses  and 
fees  as  would  by  law  be  collectible  if  the  property 
had  been  levied  upon  and  safely  kept  under  at- 
tachment. 

7.  A  copy  of  said  order  shall  immediately  be 
published  by  the  clerk  of  said  court,  in  a  news- 
paper designated  therein,  as  often  as  said  news- 
paper is  printed  before  the  meeting  of  creditors, 
and  bo  served  by  the  clerk  forthwith  by  the  United 
States  mail,  postage  prepaid,  or  personally,  on  all 
creditors  named  in  the  schedule.  There  shall  be 
deposited  in  addition  to  the  usual  cost  of  com- 
mencing such  proceedings  a  sum  of  money  suffi- 
cient to  defray  the  cost  of  the  publication  ordered 
by  the  court,  and  ten  cents  for  each  coi)y.  to  bo 
mailed  to  or  served  on  the  creditors,  which  latter 
sum  is  hereby  constituted  the  legal  fee  of  the  clerk 
for  the  mailing  or  p.ervice  required  in  this  section. 


S22  APPENDIX. 

8.  No  claim  shall  be  entitled  to  a  vote  for  the 
election  of  an  assignee,  unless  such  claim  shall  be 
placed  on  file  in  the  office  of  the  clerk  of  the  court 
in  which  the  proceedings  are  pending,  at  least  two 
days  prior  to  the  time  appointed  for  the  election 
of  an  assignee.  All  claims  shall  be  established  by 
a  statement,  showing  the  amount  and  nature  of 
the  claim,  and  security,  if  any;  such  statement  to 
be  verified  by  the  claimant,  his  agent  or  attorney; 
provided,  no  claim  barred  by  the  statute  of  limita- 
tions shall  be  proved  or  allowed  against  the  es- 
tate of  an  insolvent  debtor  for  any  purpose.  Any 
person  interested  in  the  estate  of  the  insolvent 
may  file  exceptions  to  the  legality  or  good  faith  of 
any  claim,  by  setting  forth  specifically  in  writing 
his  interest  in  the  estate,  and  the  grounds  of  his 
objection  to  such  claim;  such  specifications  of  ex- 
ceptions to  be  verified  by  the  affidavit  of  the  par- 
ty objecting,  bis  agent  or  attorney,  setting  out 
among  other  things  that  such  exceptions  are  not 
made  for  the  puiiDOse  of  delay,  or  otherwise  than 
in  good  faith  in  the  best  interest  of  said  estate. 
Such  exceptions  to  be  filed  with  the  clerli  of  the 
court  at  least  one  day  before  the  time  appointed 
for  the  election  of  an  assignee;  and  such  excep- 
tions shall  be  heard  and  disposed  of  by  the  court, 
on  affidavit  or  other  evidence,  in  a  summary  man- 
ner, before  the  election  of  an  assignee.  But  the 
decision  of  the  court  upon  the  exceptions  as  to 
whether  the  claimant  shall  be  entitled  to  vote  for 
an  assignee  shall  not  be  conclusive  upon  the  right 
of  the  party  to  participate  in  the  assets  of  the  in- 
solvent, the  enforcement  of  such  right  being  sub- 
ject to  the  laws  of  the  State  touching  the  estab- 
lishment of  claims  against  the  estates  of  insolvents 
in  case  of  dispute.  No  creditor  or  claimant,  who 
holds  any  mortgage,  pledge,  or  lien  of  any  kind 
whatever,  as  security  for  the  payment  of  his 
claim,  sliall  be  permitted  to  vote  any  part  of  his 
secured  claim  in  the  election  of  assignee,  unless 


APPENDIX.  823 

he  shall  first  have  the  value  of  such  security  fixed 
as  provided  iu  section  forty-eight  of  this  act,  or 
surrender  to  the  Sheriff  or  receiver  of  the  estate 
of  the  insolvent,  if  any  receiver,  all  such  prop- 
erty so  mortgaged  or  pledged,  or  assign  such  lien 
to  such  receiver  or  sheriff;  such  surrender  or  as- 
signment of  security  or  lien  to  be  for  the  benefit 
of  all  ci-editoi's  of  the  estate  of  the  insolvent.  The 
value  of  such  security,  if  fixed  by  the  court,  shall 
be  so  fixed  at  least  one  day  before  the  day  ap- 
pointed for  the  election  of  an  assignee;  in  which 
event  the  claimant  may  prove  his  demand,  as  pro- 
vided in  this  section,  for  any  unsecured  balance 
subject  to  the  same  exceptions  as  all  other  claims. 
[Amendment  approved  February  26,  1897;  Stats. 
1897,  c.  38.] 

ARTICLE  III. 

Involuntary  Insolvency. 
9.  An  adjudication  of  insolvency  may  be  made 
on  the  petition  of  five  or  more  creditors,  residents 
of  this  State,  whose  debts  or  demands  accrued  in 
this  State,  and  amount  in  the  aggregate  to  not  less 
than  five  hundred  dollars;  provided,  that  said  cred- 
itors, or  either  of  them,  have  not  become  creditors 
by  assignment  within  thirty  da^^s  prior  to  the  filing 
of  said  petition.  Such  petition  must  be  tiled  in  the 
superior  court  of  the  county,  or  city  and  county, 
in  which  the  debtor  resides  or  has  his  place  of  bus- 
iness, and  must  be  verified  by  at  least  three  of  the 
petitioners,  setting  forth  that  such  person  is  about 
to  depart  from  this  State,  with  intent  to  defraud 
his  creditors,  or  being  absent  from  the  State  with 
such  intent,  remains  absent;  or  conceals  himself 
to  avoid  the  service  of  legal  process;  or  conceals, 
or  is  removing,  any  of  his  property  to  avoid  its 
being  attached  or  talcen  on  legal  process;  or  be- 
ing insolvent,  has  suffered  his  property  to  remain 
under  attacliment;  or  legal  process,  for  three  days; 
or  has  confessed  or  offered  to  allow  judgment  in 


824  APPENDIX. 

favor  of  any  creditors;  or  willfully  suffered  judg- 
ment to  be  taken  against  him  by  default;  or  has 
suffered  or  procured  his  property  to  be  talien  on 
legal  process,  Avith  intent  to  give  a  preference  to 
one  or  niore  of  his  creditors;  or  has  made  any  as- 
signment, gift,  sale,  conveyance,  or  transfer  of  his 
estate,  property,  rights,  or  credits,  with  intent  to 
delay,  defraud,  or  hinder  his  creditors;  or  in  con- 
templation of  insolvency,  has  made  any  payment, 
gift,  grant,  sale,  conveyance  or  transfer  of  his 
estate,  property,  rights,  or  credits;  or  has  been  ar- 
rested and  held  in  custody  by  virtue  of  any  civil 
process  of  cotirt  founded  on  any  debt  or  demand; 
and  such  process  remains  in  force,  and  not  dis- 
charged by  payment,  or  otherwise,  for  a  period  of 
three  days;  or  being  a  merchant  or  tradesman,  has 
stopped  or  suspended,  and  not  resumed  payment 
within  a  period  of  forty  days  after  the  maturity 
of  any  written  acliuowledgment  of  indebtedness, 
unless  the  party  holding  such  acknowledgment 
has,  in  writing,  waived  the  right  to  proceed  under 
this  subdivision;  or  being  a  bank  or  banker,  agent, 
broker,  factor,  or  commission  merchant,  has  failed 
for  forty  "days  to  pay  any  moneys  deposited  with 
or  received  by  him  in  a  flduciary  capacity,  upon 
demand  of  payment,  excepting  savings  and  loan 
banks,  or  associations  Avho  loan  the  money  of  their 
stockholders  and  depositors  on  real  estate,  and  pro- 
vide in  their  by-laAVS  for  the  repayment  of  such 
deposits.  The  petitioners  may,  from  time  to  time, 
amend  and  correct  the  petition,  so  that  the  same 
shall  conform  to  the  facts  by  leave  of  the  court  be- 
fore which  the  proceedings  are  pending,  such 
amendment  or  amendments  to  relate  back  to  and 
be  received  as  embraced  in  the  original  petition; 
but  nothing  in  this  section  shall  be  construed  to 
invalidate  any  loan  of  actual  value,  or  the  security 
therefor,  made  in  good  faith  tipon  a  security  talcen 
in  good  faitli  on  the  occasion  of  the  making  of 
sucli  loan.    The  said  petition  shall  be  accompanied 


APPENDIX.  826 

by  a  bond  with  two  sureties  in  the  penal  sum  of 
at  least  five  hundred  dollars,  conditioned  that  if 
the  debtor  should  not  be  declared  an  insolvent,  the 
petitioners  will  pay  all  costs  and  damages,  includ- 
ing a  reasonable  attorney's  fee,  that  the  debtor 
may  sustain  by  reason  of  the  filing  of  said  peti- 
tion. The  court  may,  upon  motion,  direct  the  fil- 
ing of  an  additional  bond  with  different  sureties, 
when  deemed  necessary. 

10.  Upon  The  filing  of  such  creditors'  petition, 
the  court,  or  a  judge  thereof,  shall  issue  an  order 
requiring  such  debtor  to  shoAV  cause,  at  a  time 
and  place  to  be  fixed  by  said  court,  or  judge,  why 
he  should  not  be  adjudged  an  insolvent  debtor,  and 
at  the  same  time,  or  thereafter,  upon  good  cause 
shown  therefor,  said  court,  or  judge,  may  malie 
an  order  forbidding  the  payment  of  any  debts, 
and  the  delivery  of  any  property  belonging  to  such 
debtor  to  him  or  for  his  use,  or  the  transfer  of  any 
property  by  him. 

11.  A  copy  of  said  petition,  with  a  copy  of  the 
order  to  show  cause,  shall  be  served  on  the  debtor, 
in  the  same  manner  as  is  provided  by  law  for  the 
service  of  summons  in  civil  actions,  but  such  .ser- 
vice shall  be  made  at  least  five  days  before  the 
time  fixed  for  the  hearing;  provided,  that  if,  for 
any  reason,  the  service  is  not  made,  the  order  may 
be  renewed,  and  the  time  and  place  of  hearing 
changed  by  supplemental  order  of  the  court;  pro- 
vided, however,  that  where  the  debtor  or  debtors 
on  whom  service  is  to  be  made  reside  out  of  this 
State;  or  has  departed  from  the  State;  or  cannot, 
after  due  diligence,  be  found  within  the  State;  or 
conceals  himself  to  avoid  the  service  of  the  order 
to  show  cause,  or  nuy  other  process  or  orders  in 
the  matter;  or  is  a  foreign  corporation,  having  no 
managing  or  business  agent,  cashier,  or  secretary 
within  the  State,  upon  whom  service  can  be  made, 
and  such  facts  are  shown  to  the  court,  or  a  judge 
thereof,  by  affidavit  such  court  or  judge  thereof 


&26  APPENDIX. 

sbull  make  an  order  that  the  service  of  such  order, 
or  other  process,  be  made  by  publication,  in  the 
same  manner,  and  with  the  same  effect,  as  ser- 
vice of  summons  by  publication  in  ordinary  civil 
actions. 

12.  At  the  time  fixed  for  the  hearing  of  said 
order  to  show  cause,  or  such  other  time  as  it  may 
be  adjourned  to,  the  debtor  may  demur  to  the  pe- 
tition for  the  same  causes  as  is  provided  for  de- 
murrer in  other  cases  by  the  Code  of  Civil  Proced- 
ure. If  the  demurrer  be  overruled,  the  debtor 
shall  have  five  days  thereafter  in  which  to  answer 
the  petition.  If  the  debtor  answer  the  petition, 
such  answer  shall  contain  a  specific  denial  of  the 
material  allegations  of  the  petition  controverted 
by  him,  and  shall  be  verified  in  the  same  manner 
as  pleadings  in  civil  actions;  and  the  issues  raised 
rhereon,  may  be  tried  with  or  without  a  jury,  ac- 
cording to  the  practice  provided  by  law  for  the 
trial  of  civil  actions. 

13.  If  the  respondent  shall  make  default,  or  if 
after  a  trial,  the  issues  are  found  in  favor  of  the 
petitioners,  the  court  shall  make  an  order  adjudg- 
ing that  said  respondent  is,  and  was  at  the  time 
of  filing  the  petition,  an  insolvent  debtor,  and  that 
the  debtor  was  guilty  of  the  acts  and  things  charg- 
ed in  the  petition,  or  such  of  those  acts  and 
charges  as  the  court  may  find  to  be  true;  and  shall 
require  said  debtor,  within  such  time  as  the  court 
may  designate,  not  to  exceed  three  days,  to  file  in 
court  the  schedule  and  inventory  provided  for  in 
sections  three  and  four  of  this  act,  duly  verified 
as  required  of  a  petitioning  debtor;  provided,  that 
in  the  affidavit  of  the  insolvent  touching  his  prop- 
erty and  its  disposition  he  shall  not  be  required 
to  swear  that  he  has  not  made  any  fraudulent 
preference,  or  committed  any  other  act  in  conflict 
with  the  provisions  of  this  act;  but  he  may  do  so 
if  ho  desires.  Said  order  shall  further  direct  the 
slKM-iff  of  th(»  county,  or  city  and  county,  where  the 


APPENDIX.  827 

insolveucy  petition  is  tiled,  or  the  receiver,  if  one 
has  been  theretofore  aypoiuted,  to  talio  possession 
of  all  the  estate,  real  and  personal,  of  the  debtor, 
except  such  as  may  be  by  law  exempt  from  execu- 
tion and  of  all  his  deeds,  vouchers,  boolis  of  ac- 
count, and  papers,  and  to  keep  the  same  safely 
until  the  appointment  of  an  assignee.  Said  order 
shall  further  forbid  the  payment  of  any  debts,  and 
the  delivery  of  any  property  belonging  to  such 
debtor,  to  him,  or  for  his  use,  and  the  transfer 
of  any  property  by  him;  and  shall  further  appomt 
a  time  and  place  for  a  meeting  of  the  creditors, 
to  prove  their  debts,  and  choose  an  assignee  of  the 
estate,  and  shall  designate  a  newspaper  of  gen- 
eral circulation  published  in  the  county,  or  city 
and  county,  in  which  the  petition  is  tiled, 
if  there  be  one;  and  if  there  be  none,  in 
a  newspaper  published  nearest  to  such  coun- 
ty, or  city  and  county,  in  which  publication  of 
said  order  shall  be  made.  The  time  appointed  for 
the  election  .of  an  assignee  shall  not  be  less  than 
eight  nor  more  than  ten  days  from  the  date  of  the 
order  of  adjudication.  Upon  granting  of  said  or- 
der, all  proceedings  against  the  said  insolvent  shall 
be  stayed.  "When  a  receiver  is  appointed  subse- 
quent to  adjudication,  or  an  assignee  is  chosen  as 
provided  for  in  this  act,  the  sheriff  shall  there- 
upon deliver  to  such  receiver  or  assignee,  as  the 
case  may  be,  all  the  property  and  assets  of  the  in- 
solvent Avhich  have  come  into  his  possession,  and 
shall  be  allowed  and  paid  as  compensation  for 
his  service  the  same  expenses  and  fees  as  would 
by  law  be  collectible  if  the  property  had  been  lev- 
ied upon  and  safely  kept  under  attachment. 

14.  A  copy  of  the  order  provided  for  in  section 
thirteen  of  this  act,  shall  immediately  be  publish- 
ed by  the  clerk  of  said  court  in  the  newspaper  de- 
signated therein,  ns  often  as  such  newspaper  is 
printed  before  the  meeting  of  creditors,  and  upon 
the  filing,  at  any  time  before  the  date  set  for  such 


828  APPENDIX. 

mootin.u",  of  Tho  f-'chediile  required  by  sfiid  soetiou 
thirteen,  a  copy  of  said  order  shall  be  served  by 
the  elerlv  fortlnvith  by  United  States  mail,  postage 
prepaid,  or  personally,  on  all  creditors  named  in 
said  schedule.  If  said  schedule  is  not  filed  prior  to 
the  day  fixed  for  the  election  of  an  assignee,  pub- 
lication of  said  order  as  herein  required  shall  be 
of  itself  sufficient  notice  to  the  creditors  of  the 
time  and  place  appointed  for  the  election  of  an 
assignee.  No  order  of  adjudication  upon  credit- 
ors' petition  shall  be  entered  unless  there  be  first 
deposited,  in  addition  to  the  usual  cost  of  com- 
mencing said  proceedings,  a  sum  of  money  suffi- 
cient to  defray  the  cost  of  the  publication  ordered 
by  the  court,  and  tlie  further  sum  of  five  dollars, 
which  is  hereby  constituted  the  legal  fee  of  the 
clerlv  for  the  mtuling  or  service  of  notice  to  credit- 
ors required  in  this  section. 

15.  If,  upon  such  hearing  or  trial,  the  issues  are 
found  in  favor  of  the  respondent,  the  proceedings 
shall  be  dismissed,  and  the  respondent  shall  re- 
cover costs  from  the  petitioning  creditors  in  the 
same  manner  as  on  the  final  judgment  in  civil  ac- 
tions. 

16.  In  all  cases  where  the  debtor  resides  out  of 
this  State,  or  has  departed  from  the  State;  or  can- 
not, after  due  diligence,  be  found  within  the  State; 
or  conceals  himself  to  avoid  service  of  the  order  to 
show  cause,  or  any  other  preliminary  process  or 
orders  in  the  matter;  or  is  a  foreign  corporation, 
having  no  managing  or  business  agent,  cashier,  or 
secretary  within  the  State  upon  whom  service  of 
orders  and  process  can  be  made,  and  it  therefore 
becomes  necessary  to  obtain  service  of  process  and 
order  to  show  cause,  as  provided  in  section  eleven 
of  this  act,  then  the  petitioning  creditors,  upon 
submitting  the  affidavits  requisite  to  procure  an 
order  of  pulilication,  and  presenting  a  bond  in 
double  tlie  amount  of  the  aggregate  sum  of  their 
claims  against  the  debtor,  shall  be  entitled  to  an 


APPENDIX.  S29 

Older  of  court  directing  tlie  sheriff  of  the  county, 
or  city  and  county,  in  which  the  matter  is  pend- 
ing, to  talve  into  liis  custody  a  sufhcieut  amount 
of  property  of  the  debtor  to  satisfy  the  demands 
of  tlie  petitioning-  creditors,  and  the  costs  of  the 
proceedings.  Upon  receiving  such  order  of  the 
court  to  talve  into  custody  property  of  tlie  debtor, 
it  shall  be  the  duty  of  the  sheriff  to  take  posses- 
sion of  the  property  and  elfects  of  the  debtor,  not 
exempt  from  execution,  to  an  extent  sufficient  to 
cover  the  amount  provided  for,  and  to  prepare 
within  three  days  from  the  time  of  taking  such 
possession,  a  complete  inventory  of  all  the  prop- 
erty so  taken,  and  to  rerurn  it  to  the  court  as  soon 
as  completed.  The  time  for  taking  the  inventory 
and  making  return  thereof,  may  be  extended  for 
good  cause  shown  to  the  court,  or  a  judge  there- 
of. The  sheriff  shall  also  prepare  a  schedule  of  the 
names  and  residences  of  the  creditors,  and  the 
amount  due  to  each,  from  the  books  of  the  debtor, 
or  from  such  other  papers  or  data  of  the  debtor 
available  that  may  come  to  his  possession,  and 
shall  file  such  schedule  list  of  creditors  and  inven- 
tory with  the  clerk  of  the  court. 

17.  In  all  cases  where  property  is  taken  into 
the  custody  of  the  sheriff",  as  provided  in  the  pre- 
ceding section,  if  the  property  taken  into  custody 
by  the  sheriff  does  not  embrace  all  the  property 
and  effects  of  the  debtor  not  exempt  from  execu- 
tion, any  other  creditor  or  creditors  of  the  debtor, 
upon  giving  bond  in  double  the  amount  of  their 
claims,  singly  or  jointly,  shall  be  entitled  to  simi- 
lar orders,  and  to  like  action,  by  the  sheriff",  until 
all  claims  be  provided  for,  if  there  be  sufficient 
property  or  effects.  All  property  taken  into  cus- 
tody by  the  sheriff"  by  virtue  of  the  giving  of  any 
such  bonds  shall  be  held  by  him  for  the  benefit  of 
all  creditors  of  the  debtor  whose  claims  shall  be 
duly   proved,    and   as   provided   in   tliis   act.     Tlie 

Code   Civ.    Pror.  — 70. 


830  APPENDIX. 

bonds  provided  for  iu  tliis  and  the  preceding  sec- 
tion to  procure  the  order  for  custody  of  the  prop- 
erty and  effects  of  the  debtor,  shall  be  conditioned 
that  if,  upon  tinal  hearing  of  the  petition  in  insol- 
vency, the  court  shall  find  in  favor  of  the  peti- 
tioners, such  bonds  and  all  of  them  shall  be  void; 
if  the  decision  be  in  favor  of  the  debtor,  the  pro- 
ceedings shall  be  dismissed,  and  the  debtor,  his 
heirs,  administrators,  executors,  or  assigns,  shall 
be  entitled  to  recover  such  sum  of  money  as  shall 
be  sufficient  to  cover  the  damages  sustained  by 
him,  not  to  exceed  the  amount  of  the  respective 
bonds,  in  any  court  having  jurisdiction  of  the  sub- 
ject and  the  parties;  provided,  that  if  either  the 
petitioners  or  the  debtor  shall  appeal  from  the  de- 
cision of  the  court,  upon  tinal  hearing  of  the  pe- 
tition the  appellant  shall  be  required  to  give  bond 
to  the  successful  party  in  a  sum  double  the  amount 
of  the  value  of  the  property  in  controversy,  and 
for  the  costs  of  the  proceedings.  Any  person  in- 
terested in  the  estate  may  except  to  the  sufficiency 
of  .the  sureties  on  such  bond,  or  bonds.  When  ex- 
cepted to,  the  petitioner's  sureties,  upon  notice  to 
the  person  excepting  of  not  less  than  two  nor  more 
than  five  days,  must  justify  before  a  judge  or 
county  clerk  in  the  same  manner  as  upon  bail  on 
arrest;  and  upon  failure  to  justify,  or  if  others  in 
their  place  fail  to  justify,  at  the  time  and  place  ap- 
l)ointed,  the  clerk  or  judge  shall  issue  an  order  va- 
cating the  order  to  take  the  property  of  the  debtor 
into  the  custody  of  the  sheriff. 

18.  If  in  any  case,  proper  affidavits  and  bonds 
are  presented  to  the  court,  or  a  judge  thereof,  ask- 
ing for  and  obtnining  an  order  of  publication,  and 
an  order  for  the  custody  of  the  property  of  the 
debtor,  as  provided  in  sections  sixteen  and  seven- 
teen of  this  act,  and  thereafter  the  petitioners 
shnll  make  it  appear  satisfactory  to  the  court,  or 
a  judge  thereof,  that  the  interest  of  the  parties 
to  the  proceedings  will  bo  subserved    by  a  sale 


APPENDIX.  S31 

thereof,  the  court  may  order  such  property  to  be 
sold,  iu  tlie  same  manner  as  property  is  sold  un- 
der execution,  the  proceeds  to  be  deposited  in  the 
court,  to  abide  the  re^^ult  of  the  proceedings. 

ARTICLE  IV. 

Assignees. 

19.  At  a  meeting  of  the  creditors  iu  open> court, 
those  being  entitled  to  vote,  as  provided  by  sec- 
tion eight,  shall  proceed  to  the  election  of  one  as- 
signee. In  electing  an  assignee,  the  opinion  of  the 
majority  in  amount  of  claims  shall  prevail.  The 
clerk  of  the  court  shall  keep  a  minute  of  the  delib- 
erations of  said  creditors,  and  of  the  election  and 
appointment  of  an  assignee,  and  enter  the  same 
upon  the  records  of  the  court.  The  assignee  shall 
file,  within  five  days,  unless  the  time  be  extended 
by  the  court,  with  the  clerk,  a  bond,  in  an  amount 
to  be  fixed  by  the  court,  to  the  State  of  California, 
with  two  or  more  sufficient  sureties,  approved  by 
the  court,  and  conditioned  for  the  faithful  per- 
formance of  the  duties  devolving  upon  him.  The 
bond  shall  not  be  void  upon  the  first  recovery,  but 
may  be  sued  upon  from  time  to  time  by  any  cred- 
itor aggrieved,  in  his  own  name,  until  the  whole 
penalty  be  exhausted.  The  sureties  on  such  bond 
may  be  required  to  justify  upon  the  application 
of  any  party  interested,  in  the  same  manner  as 
bail  upon  arrest  in  civil  cases. 

20.  If,  on  the  day  appointed  for  the  meeting, 
creditors  do  not  attend,  or  refuse  to  elect  an  as- 
signee; or  if,  after  election,  the  assignee  shall  fail 
to  qualify  within  the  proper  time,  or  if  a  va- 
cancy occurs  by  death  or  otherwise,  it  shall  be 
lawful  for  the  court  to  appoint  an  assignee  and 
fix  the  amount  of  his  bond. 

21.  As  soon  as  an  assignee  is  elected  or  appoint- 
ed and  qualified,  the  clerk  of  the  court  shall,  by  an 
instrument  under  his  hand  and  seal  of  the  court, 
assign  and  convey  to  the  assignee  all  the  estate, 


832  APPENDIX. 

roal  and  personal  of  the  debtor  with  all  his  deeds, 
books  and  papers  relating  thereto,  and  such  as- 
signment shall  relate  back  to  the  commencement 
of  the  proceedings  in  insolvency,  and  shall  relate 
back  to  the  acts  upon  which  the  adjudication  was 
founded,  and  by  operation  of  law  shall  vest  the 
title  to  all  such  property  and  estate,  both  real  and 
personal,  in  tlie  assignee,  although  the  same  is 
then  attached  on  mesne  process,  as  the  property  of 
the  debtor,  and  shall  dissolve  any  attachment 
made  within  one  month  next  preceding  the  com- 
mencement of  the  insolvency  proceedings.  Such 
assignment  shall  operate  to  vest  in  the  assignee  all 
of  the  estate  of  the  insolvent  debtor  not  exempt 
by  law  from  execution.  Whenever  such  assign- 
ment shall  dissolve  an  attachment  as  herein  pro- 
vided, it  shall  also  vacate  any  judgment  made  or 
entered,  and  dissolve  and  set  aside  any  execution 
levied  in  any  action  or  proceeding  against  the 
debtor  commenced  subsequently  to  the  action  in 
which  the  attachment  is  dissolved. 

22.  The  assignee  shall  have  the  right  to  recover 
all  the  estate,  debts,  and  effects  of  said  insolvent. 
If,  at  the  time  of  the  commencement  of  proceed- 
ings in  insolvency  an  action  is  pending  in  the 
name  of  the  debtor,  for  the  recovery  of  a  debt  or 
other  thing  which  might  or  ought  to  pass  to  the 
assignee  by  the  assignment,  the  assignee  shall  be 
allowed  and  admitted  to  prosecute  the  action,  in 
like  manner  and  with  like  effect  as  if  it  had  been 
originally  commenced  by  him.  If  there  are  any 
rights  of  action  in  favor  of  the  insolvent  for  dam- 
ages, on  any  account,  for  which  an  action  is  not 
pending,  the  assignee  sliall  have  the  right  to  prose- 
cute the  same  with  the  same  effect  as  the  insol- 
vent might  have  done  himself  if  no  proceedings  in 
insolvency  had  been  instituted.  If  any  action  or 
proceeding  at  law.  or  in  e(iuity,  in  which  the  insol- 
vent is  defend;! nt  is  pending  at  the  time  of  the 
adjudication,  tlic  assignee  may  defend  the  same, 


APPENDIX.  833 

iu  the  same  maimer  aud  with  like  effect  as  it 
might  have  beeu  defended  by  the  insolvent.  In 
suit  prosecuted  or  defended  by  the  assignee,  a  cer- 
tified copy  of  the  assignment  made  to  him  shall 
be  conclusive  evidence  of  his  authority  to  sue  or 
defend. 

23.  The  assignee  shall,  within  one  month  after 
the  mailing  of  the  assignment  to  him,  cause  the 
same  to  be  recorded  in  every  county,  or  city  and 
county,  within  this  State,  where  any  lands  owned 
by  the  debtor  are  situated,  and  the  record  of  such 
assignment,  or  a  duly  certified  copy  thereof,  shall 
be  conclusive  evidence  thereof  in  all  courts.  If 
the  schedule  and  inventory  required  by  this  act 
have  not  been  liled  by  the  debtor  the  assignee  shall 
within  one  month  after  his  election,  prepare  and 
file  such  schedule  und  inventory  from  the  best  in- 
formation he  can  obtain,  aud  shall  thereupon  serve 
notice  by  United  States  mail,  postage  prepaid,  or 
personally,  on  all  creditors  named  in  such  sched- 
ule, whose  claims  have  not  been  filed,  to  forth- 
with prove  their  demands. 

24.  Any  assignee  may  at  any  time,  by  writing 
filed  in  court,  resign  his  appointment,  having  first 
settled  his  accounts,  and  delivered  up  all  the  es- 
tate to  such  successor  as  the  court  shall  appoint; 
provided,  that  if.  in  the  discretion  of  the  court,  the 
circumstances  of  the  case  require  it,  upon  good 
cause  being  shown,  the  court  may,  at  any  time  be- 
fore such  settlement  of  account  and  delivery  of 
the  estate  shall  have  been  completed,  revoke  the 
appointment  of  such  assignee  and  appoint  another 
in  his  stead.  The  liability  of  the  outgoing  as- 
signee, or  of  the  sureties  on  his  bond,  shall  not  be 
in  any  manner  discharged,  released,  or  affected  by 
sucli, appointment  of  another  in  his  stead. 

25.*   The  said  assignee  shall  have  power: 
1.    To  sue  in  his  own  name  and  recover  all  the 
estate,  debts,  and  things  in  action,  belonging  or 
due  to  such  debtor,  and  no  set-oft"  or  counter-claim 


834  APPENDIX. 

shall  be  allowed  in  any  such  suit  for  any  debt,  un- 
less it  was  owing  to  such  creditor  by  such  debtor 
at  the  time  of  the  adjudication  of  insolvency. 

2.  To  talce  into  his  possession  all  the  estate  of 
such  debtor  except  property  exempt  by  law  from 
execution,  whether  attached  or  delivered  to  him, 
or  afterward  discovered  and  all  boolvS,  vouchers, 
evidence  of  indebtedness  and  securities  belonging 
to  the  same. 

3.  In  case  of  a  nonresident  absconding  or  con- 
cealed debtor,  to  demand  and  receive  of  every 
sheriff  who  sliall  have  attached  any  of  the  prop- 
erty of  such  debtor,  or  who  shall  have  in  his  pos- 
session any  moneys  arising  from  the  sale  of  such 
property,  all  such  property  and  moneys,  on  paying 
him  his  lawful  costs  and  charges  for  attaching  and 
keeping  the  same. 

4.  From  time  to  time  to  sell  at  public  auction 
ali  the  estate,  real  and  personal,  vested  in  him  as 
such  assignee,  which  shall  come  to  his  possession 
and  as  ordered  by  the  court. 

5.  On  such  sales  to  execute  the  necessary  con- 
veyances and  bills  of  sale. 

6.  To  redeem  all  valid  mortgages  and  condition- 
al contracts,  and  all  valid  pledges  of  personal 
property,  and  to  satisfy  any  judgments  which  may 
be  an  encumbrance  on  any  property  sold  by  him, 
or  to  sell  such  property,  subject  to  such  mortgage, 
contracts,  pledges,  or  judgments. 

7.  To  settle  all  matters  and  accounts  between 
such  debtor  and  his  debtors,  subject  to  the  approv- 
al of  the  court. 

8.  Under  the  order  of  the  court  appointing  him, 
to  compound  with  any  person  indebted  to  such 
debtor,  and  thereupon  to  discharge  all  demands 
against  such  person. 

9.  To  have  and  recover  from  any  person  receiv- 
ing a  conveyance,  gift,  transfer,  payment,  or  as- 
signment, made  contrary  to  any  provision  of  this 
act,  the  property  tliereby  transferred  or  assigned; 


APPENDIX.  •      835 

or  in  case  a  redelivery  of  the  property  cauuot  be 
bad,  to  recover  the  value  thereof,  with  damages 
for  the  detention. 

26.  The  insolvent  shall,  either  before  or  on  the 
day  appointed  for  the  meeting  of  creditors,  deliv- 
er to  the  court  all  the  commercial  or  account  boolvS 
he  may  have  Icept,  which  books  shall  be  deposited 
in  the  clerli's  ottice  of  said  court.  Said  insolvent 
shall  also  deliver  to  the  court  at  the  same  time, 
all  vouchers,  notes,  bonds,  bills,  securities,  or  other 
evidences  of  debt,  in  any  manner  relating  to  or 
having  anj^  bearing  upon  or  connection  with  the 
property  surrendered  by  said  debtor,  and  all  such 
papers  or  securities  shall  be  deposited  in  the 
cleric's  otlice  of  said  court,  and  the  clerk  shall 
hand  them  over,  together  with  the  books  of  the  in- 
solvent, to  the  assignee  who  may  be  appointed. 

27.  If  any  person,  before  the  assignment  is 
made,  having  notice  of  the  commencement  of  the 
proceedings  in  insolvency,  or  haying  reason  to  be- 
lieve that  insolvency  proceedings  are  about  to  be 
commenced,  embezzles  or  disposes  of  any  of  the 
moneys,  goods,  chattels,  or  effects  of  the  insolvent, 
he  is  chargeable  therewith,  and  liable  to  an  action 
by  the  assignee  for  double  the  value  of  the  prop- 
erty so  embezzled  or  disposed  of,  to  be  recovered 
for  the  benefit  of  the  estate. 

28.  The  same  penalties,  forfeitures,  and  pro- 
ceedings by  citation,  examination  and  commitment 
shall  apply  on  behalf  of  an  assignee  against  per- 
sons suspected  of  having  concealed,  embezzled, 
conveyed  away,  or  disposed  of  any  property  of  the 
debtor,  or  of  having  possession  or  knowledge  of 
any  deeds,  conveyances,  bonds,  contracts,  or  other 
writings  which  relate  to  any  interest  of  the  debt- 
or in  any  real  or  personal  estate  as  provided  in  the 
case  of  estates  of  deceased  persons  in  sections  one 
thousand  four  hundred  and  fifty-nine,  one  thous- 
and four  hundred  and  sixty,  and  one  thousand 
four  hundred  and  sixty-one  of  the  Code  of  Civil 
Procedure. 


836      "  APPENDIX. 

29.  The  assignee  shall  as  speedily  as  possible 
convert  the  estate,  real  and  personal,  into  money. 
He  shall  keep  a  regular  account  of  all  moneys  re- 
ceived by  him  as  assignee,  to  Avhich  every  creditor 
or  other  person  interested  therein  may,  at  all  rea- 
sonable times,  have  access.  No  private  sale  of  any 
property  of  the  estate  of  an  insolvent  debtor  shall 
be  valid  unless  made  under  the  order  of  the  court, 
upon  a  petition  in  writing,  which  shall  set  forth 
the  facts  showing  the  sale  to  be  necessary.  Upon 
filing  the  petition,  notice  of  at  least  ten  days  shall 
be  given  by  publication  and  mailing,  in  the  same 
manner  as  is  provided  in  section  seven  of  this  act. 
If  it  appears  that  a  private  sale  is  for  the  best  in- 
terests of  the  estate,  the  court  shall  order  it  to  be 
made. 

30.  In  all  cases  where  there  has  been  personal 
service  of  the  order  to  show  cause,  or  voluntary 
appearance  after  order  of  publication,  when  it  ap- 
pears to  the  satisfaction  of  the  court  that  the  es- 
tate of  the  debtor,  or  any  part  thereof,  is  of  a  per- 
ishable nature,  or  is  liable  to  deteriorate  in  value, 
or  is  disproportionately  expensive  to  keep,  the 
court  may  order  the  same  to  be  sold  in  such  man- 
ner as  may  be  deemed  most  expedient,  under  the 
direction  of  the  sheriff,  receiver,  or  assignee,  as 
the  case  may  be,  who  shall  hold  the  funds  re- 
ceived in  place  of  the  property  sold  until  further 
order  of  the  court. 

31.  Outstanding  debts,  or  other  property  due  or 
belonging  to  the  estate,  which  cannot  be  collected 
and  received  by  the  assignee  without  unreasonable 
or  inconvenient  delay  or  expense,  may  be  sold  and 
assigned  in  like  manner  as  the  remainder  of  the 
estate.  If  there  are  any  rights  of  action  for  dam- 
ages in  favor  of  the  insolvent  prior  to  the  com- 
mencement of  the  insolvency  proceedings,  the 
same  may,  with  the  approval  of  the  court,  be  com- 
promised. 

32.  Assignees  shall  be  allowed  all  necessary  ex- 


APPENDIX.  837 

peuses  in  the  care,  management,  and  settlement 
of  the  estate,  and  shall  be  entitled  to  charge  and 
receive  for  their  services  commissions  upon  all 
sums  of  money  coming  to  their  hands  and  ac- 
counted for  bj'  them,  as  follows:  For  the  first 
thousand  dollars,  at  the  rate  of  seven  per  cent; 
for  all  nbove  that  sum  and  not  exceeding  ten 
thousand  dollars,  at  the  rate  of  five  per  cent;  and 
for  all  above  that  sum,  at  the  rate  of  four  per 
cent;  provided,  however,  that  if  the  person  act- 
ing as  assignee  was  receiver  of  the  property  of  the 
estate  pending  the  election  of  an  assignee,  any 
compensation  allowed  him  as  such  receiver  shall 
be  deducted  from  the  compensation  to  which  he 
otherwise  would  be  entitled  as  such  assignee. 

33.  At  the  expiration  of  three  months  from  the 
appointment  of  the  assignee  in  any  case,  or  as 
much  earlier  as  the  court  may  direct,  a  time  and 
place  shall  be  fixed  by  the  court  at  which  the  as- 
signee shall  exhibit  to  the  court  and  to  the  credit- 
ors, and  file  just  and  true  accounts  of  all  his  re- 
ceipts and  payments,  verified  by  his  oath,  and  a 
statement  of  the  property  outstanding,  specifying 
the  cause  of  its  outstanding,  also  what  debts  or 
claims  are  yet  undetermined,  and  stating  what 
sum  remains  in  his  possession,  and  shall  accom- 
pany the  same  with  an  affidavit  that  notice  by 
mail  has  been  given  to  all  creditors  named  in  the 
schedule  filed  by  the  debtor  or  the  assignee  that 
said  accounts  will  be  heard  at  a.  time  specified  in 
such  notice,  which  time  shall  not  be  less  than  ten 
nor  more  than  fifteen  days  from  the  filing  of  such 
accounts.  At  the  hearing  the  court  shall  audit  the 
accounts,  and  any  person  interested  may  appear 
and  file  exceptions  thei-eto  and  contest  the  same, 
and  thereupon  the  court  may  order  a  dividend  paid 
to  those  creditors  whose  claims  have  been  proven 
and  allowed.  Thereafter,  further  accounts,  state- 
ments, and  dividends  shall  be  made  in  lilvC  man- 
ner as  often  as  occasion  requires;  provided,  how- 


83S  APPENDIX. 

ever,  that  it  shall  be  the  duty  of  the  assignee  to  file 
his  fiual  account  within  one  year  from  the  date 
of  the  order  of  adjudication,  unless  the  court,  af- 
ter notice  to  creditors,  shall  grant  further  time, 
upon  a  satisfactory  showing  that  great  loss  and 
waste  would  result  to  the  estate  by  reason  of  tlie 
conversion  of  the  property  into  money  within  said 
time,  or  that  it  has  been  impossible  to  do  so  by 
reason  of  litigation. 

34.  The  court  shall  at  any  time,  upon  the  mo- 
tion of  any  two  or  more  creditors,  require  the  as- 
signee to  file  his  account  in  the  manner  and  upon 
giving  the  notice  specified  in  the  preceding  section, 
and  if  he  has  funds  subject  to  distribution,  he 
shall  be  required  to  distribute  them  without  de- 
lay. 

35.  All  creditors  whose  debts  are  duly  proved 
and  allowed  shall  be  entitled  to  share  in  the  prop- 
erty and  estate  pro  rata  without  priority  or  pref- 
erence whatever,  other  than  as  provided  in  this 
act  and  in  section  one  thousand  two  hundred  and 
four  of  the  Code  of  Civil  Procedure;  provided,  that 
any  debt  proved  by  any  person  liable  as  bail,  sure- 
ty, guarantor,  or  otherwise,  for  the  debtor,  shall 
not  be  paid  to  the  person  so  proving  the  same  imtil 
satisfactory  evidence  shall  be  produced  of  the  pay- 
ment of  such  debt  by  such  person  so  liable;  and 
the  share  to  which  such  debt  would  be  entitled 
may  be  paid  into  court,  or  otherwise  held,  for  the 
benefit  of  the  party  entitled  thereto,  as  the  court 
may  direct. 

36.  Whenever  any  dividend  has  been  duly  de- 
clared, the  distribution  of  it  shall  not  be  stayed 
or  affected  by  reason  of  debts  being  subsequently 
proved,  but  the  creditors,  proving  such  debts  shall 
be  entitled  to  a  dividend  equal  to  those  already 
received  by  the  other  creditors,  before  any  further 
dividend  is  made  to  the  latter;  provided,  the  fail- 
ure to  prove  such  claim  shall  not  have  resulted 
from  his  own  neglect. 


APPENDIX.  839 

37.  Should  the  assignee  refuse  or  neglect  to  ren- 
der his  accounts  as  required  by  sections  thirty- 
three  and  thirty-four  of  this  act,  or  pay  over  a  di- 
vidend when  he  shall  have,  in  the  opinion  of  the 
court,  sufficient  funds  for  that  purpose,  the  court 
shall  immediately  discharge  such  assignee  from 
his  trust,  and  shall  have  power  to  appoint  another 
in  his  place.  The  assignee  so  discharged  shall 
forthwith  deliver  over  to  the  assignee  appointed 
by  the  court  all  the  funds,  property,  books,  vouch- 
ers, or  securities  belonging  to  the  insolvent,  with- 
out charging  or  retaining  any  commission  or  com- 
pensation for  his  personal  services. 

38.  Preparatory  to  the  final  account  and  divi- 
dend, the  assignee  shall  submit  his  account  to  the 
court,  and  file  the  same,  and  shall  at  the  time 
of  filing  accompany  the  same  with  an  affidavit 
that  a  notice  by  mail  has  been  given  to  all  credit- 
ors who  have  proved  their  claims,  that  he  will 
apply  for  a  settlement  of  his  account,  and  for  a 
discharge  from  all  liability  as  assignee,  at  a  time 
specified  in  such  notice,  which  time  shall  not  be 
less  than  ten  or  more  than  twenty  days  from  such 
filing.  At  the  hearing  the  cotirt  shall  audit  the 
account,  and  any  person  interested  may  appear 
and  file  exceptions  in  writing  and  contest  the 
same.  The  court  thereupon  shall  settle  the  ac- 
count, and  order  a  dividend  of  any  portion  of  the 
estate,  remaining  undistributed,  and  shall  dis- 
charge the  assignee,  subject  to  compliance  witli 
the  order  of  the  court,  from  all  liability  as  assignee 
to  any  creditor  of  the  insolvent. 

ARTICLE  y. 
Partnerships  and  Corporations. 

39.  Two  or  more  persons  who  are  partners  in 
business,  or  the  surviving  partner  of  any  firm, 
may  be  adjudged  insolvent,  either  on  the  petition 
of  such  partners,  or  any  one  of  them,  or  on  the 


840  APPENDIX. 

petition  of  five  or  more  creditors  of  tlie  partner- 
ship, qualified  as  provided  for  in  section  nine  of 
this  act,  in  which  case  an  order  shall  be  issued  in 
the  manner  provided  by  this  act,  upon  which  all 
the  joint  stock  and  property  of  the  partnership, 
and  also  all  the  separate  estate  of  each  of  the 
partners,  shall  be  taken,  excepting  such  parts 
thereof  as  may  be  exempt  by  law;  and  all  the 
creditors  of  the  company,  and  the  separate  credit- 
ors of  each  partner,  shall  be  allowed  to  prove  their 
respective  debts;  and  the  assignee  shall  be  chosen 
by  the  creditors  of  the  copartnership,  and  shall 
also  keep  separate  accounts  of  the  joint  stock  or 
property  of  the  copartnership,  and  the  separate 
estate  of  each  member  thereof,  and  after  deduct- 
ing out  of  the  whole  aiiiount  received  by  such  as- 
signee the  Avhole  amount  of  the  expenses  and  dis- 
bursements, the  net  proceeds  of  the  joint  stock 
shall  be  appropriated  to  pay  the  creditors  of  the 
copartnership,  and  the  net  proceeds  of  the  separ- 
ate estate  of  each  partner  shall  be  appropriated  to 
pay  his  separate  creditors;  and  if  there  shall  be 
any  balance  of  the  separate  estate  of  any  partner 
after  the  payment  of  his  separate  debts,  such 
balance  shall  be  added  to  the  joint  stock  for  the 
payment  of  the  joint  creditors;  and  if  there  shall 
be  any  balance  of  the  joint  stock  after  the  pay- 
ment of  the  joint  debts,  such  balance  shall  be  di- 
vided and  appropriated  to  and  among  the  separate 
estate  of  the  several  partners  according  to  their 
respective  right  and  interest  therein,  and  as  it 
would  have  been  if  the  partnership  had  been  dis- 
solved without  any  insolvency;  and  the  sum  so  a]v 
propriated  to  the  separate  estate  of  each 
partner  shall  be  applied  to  the  payment  of 
his  separate  debts,  and  the  certificate  of 
discharge  shall  be  granted  or  refused  to 
each  partner  as  the  same  would  or  ought 
to  be  if  the  proceedings  had  been  by  or 
against    liim    alone    under    this    act;   and  in  all 


APPENDIX.  841 

other  respects  the  proceedings  as  to  the  partners 
shall  be  conducted  in  the  lilve  manner  as  if  they 
had  been  commenced  and  prosecuted  by  or 
against  one  person  alone.  If  such  copartners  re- 
side in  ditferent  counties,  the  court  in  which  the 
petition  is  first  filed  shall  retain  exclusive  juris- 
diction over  the  case.  If  the  petition  be  filed  by 
less  than  all  the  partners  of  a  copartnership,  those 
partners  who  do  not  join  in  the  petition  shall  be 
ordered  to  show  cause  why  they,  as  individuals, 
and  said  copartnership,  should  not  be  adjudged  to 
be  insolvent,  in  the  same  manner  as  other  debtors 
are  required  to  show  cause  upon  a  creditor's  peti- 
tion, as  in  this  act  provided;  and  no  order  of  ad- 
judication shall  be  made  in  said  proceedings  until 
after  the  bearing  of  said  order  to  show  cause;  pro- 
vided, that  in  case  of  proceedings  by  or  against 
surviving  partners,  as  such,  only  the  partnership 
interest  of  deceased  partners  shall  be  subject  to 
the  control  of  the  court  in  the  insolvency  proceed- 
ing; but  the  surviving  partner,  assignee,  or  credit- 
ors may  pursue  the  property  of  the  deceased  part- 
ners in  the  court  having  jurisdiction  thereof  in 
probate  proceedings. 

40.  The  provisions  of  this  act  shall  apply  to  cor- 
porations, and  upon  the  petition  of  any  officer  of 
any  corporation,  duly  authorized  by  the  vote  of 
the  board  of  directors  or  trustees,  at  a  meeting 
specially  called  for  that  purpose,  or  by  the  assent 
in  writing  of  a  majority  of  the  directors  or  trustees 
as  the  case  may  be,  or  upon  a  creditor's  petition 
made  and  presented  in  the  manner  provided  in  re- 
spect to  debtors,  the  like  proceedings  shall  be  had 
and  taken  as  are  provided  in  the  case  of  debtors. 
All  the  provisions  of  the  act  which  apply  to  the 
debtor,  or  set  forth  his  duties,  examination,  and 
liabilities,  or  prescribe  penalties,  or  relate  to  fraud- 
ulent conveyances,  payments  and  assignments, 
apply  to  each  and  every  officer  of  any  corporation 
Code   Civ.    Proc— 71. 


?.42  APPENDIX. 

in  relation  to  the  same  matters  concerning  the  cor- 
poration. Whenever  any  corporation  is  declared 
insolvent,  all  its  property  and  assets  shall  be  dis- 
tributed to  the  creditors;  but  no  discharge  shall  be 
granted  to  any  corporation. 

ARTICLE  VI. 
Proof  of  Debts. 

41.  All  debts  due  and  payable  from  the  debtor 
at  the  time  of  the  adjudication  of  insolvency,  and 
all  debts  then  existing  but  not  payable  until  a  fu- 
ture time,  a  rebate  of  interest  being  made  when 
no  interest  is  payable  by  the  terms  of  the  con- 
tract, may  be  proved  against  the  estate  of  the 
debtor. 

42.  All  demands  against  the  debtor  for  or  on 
account  of  any  goods  or  chattels  wrongfully  taken, 
converted,  or  withheld  by  him,  may  be  proved  and 
allowed  as  debts  to  the  amount  of  the  value  of  the 
property  so  withheld,  from  the  time  of  the  conver- 
sion; provided,  however,  that  if  the  assignee,  or 
any  creditor  whose  claim  has  been  proven  against 
the  estate,  shall  request  it  in  writing,  the  court 
shall  require  the  matter  of  such  claim  for  dam- 
ages to  be  tried  as  an  ordinary  action  at  law,  to 
determine  the  liability  of  the  debtor  for  such  dam- 
ages. 

43.  If  the  debtor  shall  be  bound  as  indorser, 
surety,  bail,  or  guarantor,  upon  any  bill,  bond, 
note,  or  other  specialty  or  contract,  or  for  any  debt 
of  any  person,  and  his  liability  shall  not  have  be- 
come absolute  until  the  adjudication  of  Insol- 
vency, tile  creditor  may  prove  the  same  after 
such  liability  shall  have  become  fixed,  and  before 
the  final  dividend  shall  have  been  declared. 

44.  In  all  cases  of  contingent  debts  and  con- 
tingent liabilities,  contracted  by  the  debtor,  and 
not  herein  otherwise  provided  for,  the  creditor 
may  malce  claim  therefor  and  have  his  claim  al- 
lowed, with  the  right  to  share  in  the  dividends,  if 


APPENDIX.  843 

the  contingeucy  shall  happen  before  the  order  of 
the  final  dividend;  or  he  may,  at  any  time,  apply 
to  the  court  to  have  the  present  value  of  the  debt 
or  liability  ascertained  and  liquidated,  which  shall 
be  done  in  such  manner  as  the  court  shall  order, 
and  shall,  be  allowed  to  prove  for  the  amount  so 
ascertained. 

45.  Any  person  liable  as  bail,  surety,  or  guar- 
antor, or  otherwise,  for  the  debtor,  who  shall  have 
paid  the  debt,  or  any  part  thereof,  in  discharge 
of  the  whole,  shall  be  entitled  to  prove  such  debt, 
or  to  stand  in  the  place  of  the  creditor,  if  he  shall 
have  proved  the  same,  although  such  payments 
shall  have  been  made  after  the  proceedings  in  in- 
solvency were  commenced;  and  any  person  so  lia- 
ble for  the  debtor,  and  who  has  not  paid  the  whole 
of  said  debt,  but  is  still  liable  for  the  same,  or 
any  part  thereof,  may,  if  the  creditor  shall  fail  or 
omit  to  prove  such  debt,  prove  the  same  in  the 
name  of  the  creditor. 

46.  Where  the  debtor  is  liable  to  pay  rent,  or 
other  debt  falling  due  at  fixed  and  stated  periods, 
the  creditor  may  prove  for  a  proportionate  part 
thereof  up  to  the  time  of  the  insolvency,  as  if  the 
same  became  due  from  day  to  day,  and  not  at 
such  fixed  and  stated  periods. 

47.  In  all  cases  of  mutual  debts  and  mutual 
credits  between  the  parties,  the  account  between 
them  shall  be  stated,  and  one  debt  set  off  against 
the  other,  and  the  balance  only  shall  be  allowed 
and  paid.  But  no  set-off  or  counter-claim  shall  be 
allowed  of  a  claim  in  its  nature  not  provable 
against  the  estate;  provided,  tliat  no  set-off  or 
counter-claim  shall  be  allowed  in  favor  of  any 
debtor  to  the  insolvent  of  a  claim  purchased  by  or 
transferred  to  him  after  the  filing  of  the  petition 
by  or  against  him. 

48.  When  a  creditor  has  a  mortgage,  or  pledge 
of  real  or  personal  property  of  the  debtor,  or  a  lien 
thereon,  for  securing  the  payment  of  a  debt  owing 


844  APPENDIX. 

to  him  from  the  debtor,  he  shall  be  admitted  as  a 
creditor  only  for  the  balance  of  the  debt,  after 
deducting  the  value  of  such  property,  to  be  ascer- 
tained by  agreement  between  him  and  the  receiv- 
er, if  any,  and  if  no  receiver,  then  upon  such  sum 
as  the  court,  or  a  judge  thereof,  may  decide  to  be 
fair  and  reasonable,  before  the  election  of  an  as- 
signee, or  by  a  sale  thereof,  to  be  made  in  such 
manner  as  the  court,  or  judge  thereof,  shall 
direct;  or  the  creditor  may  release  or  convey 
his  claim  to  the  receiver,  if  any,  or  if  no  receiver 
then  to  the  sheriff,  before  the  election  of  an  as- 
signee, or  to  the  assignee  if  an  assignee  has  been 
elected,  upon  such  property,  and  be  admitted  to 
prove  his  whole  debt.  If  the  value  of  the  prop- 
erty exceeds  the  sum  for  which  it  is  so  held  as  se- 
curity, the  assignee  may  release  to  the  creditor 
the  debtor's  right  of  redemption  thereon  on  re- 
ceiving such  excess;  or  he  may  sell  the  property, 
subject  to  the  claim  of  the  creditor  thereon,  and 
in  either  case  the  assignee  and  creditor,  respect- 
ively, shall  execute  all  deeds  and  writings  neces- 
sary or  proper  to  consummate  the  transaction.  If 
the  property  is  not  sold  or  released,  and  delivered 
up,  or  its  value  fixed,  the  creditor  shall  not  be  al- 
lowed to  prove  any  part  of  his  debt. 

49.  No  creditor,  proving  his  debt  or  claim, 
shall  be  allowed  to  maintain  any  suit  at  law  or  in 
equity  therefor,  against  the  debtor,  but  shall  be 
deemed  to  have  waived  all  right  of  action  and  suit 
against  him,  and  all  proceedings  already  com- 
menced, or  unsatistied,  judgment  already  obtain- 
ed thereon,  shall  be  deemed  to  be  discharged  and 
surrendered  thereby;  and  after  the  debtor's  dis- 
charge, upon  proper  application  and  proof  to  the 
court  having  jurisdiction,  all  such  proceedings 
shall  be  dismissed,  and  such  unsatisfied  judg- 
ments satisfied  of  record;  provided,  that  no  valid 
lien  existing  in  good  faith  thereunder  shall  be 
therebj^    affected;    and    further   provided,    that   a 


APPENDIX.  845 

creditor  proving  his  debt  or  claim  shall  not  be 
held  to  have  waived  his  right  of  action  or  suit 
against  the  debtor  where  a  discharge  has  been 
refused  or  the  proceedings  have  been  determined 
without  a  discharge.  And  no  creditor  whose  debt 
is  provable  under  this  act  shall  be  allowed,  after 
the  commencement  of  proceedings  in  insolvency, 
to  prosecute  to  final  .iudgment  nuj  action  therefor 
against  the  debtor  until  the  question  of  tlie  debt- 
or's discharge  shall  have  been  determined,  and 
any  such  suit  or  proceeding  shall,  upon  the  ap- 
plication of  the  debtor  or  of  any  creditor,  or  the 
assignee,  be  stayed  to  await  the  determination  of 
the  court  in  insolvency  on  the  question  of  dis- 
charge; provided,  that  there  be  no  unreasonable 
delay  on  the  part  of  the  debtor  or  the  petitioning 
creditors,  as  the  case  may  be,  in  prosecuting  the 
case  to  its  conclusion;  and  provided  also,  that  if 
the  amount  due  the  creditor  is  in  dispute,  the 
suit,  by  leave  of  the  court,  in  insolvency  may 
proceed  to  judgment  for  the  purpose  of  ascer- 
taining the  amount  due,  which  amount  may  be 
proven  in  insolvency,  but  execution  shall  be  stay- 
ed as  aforesaid;  provided  further,  that  where  a 
valid  lien  or  attachment  has  been  acquired  or  se- 
cured in  any  such  action,  and  an  undertaking 
been  offered  and  accepted  in  lieu  of  such  lien  or 
attachment,  the  case  may  be  prosecuted  to  final 
judgment  for  the  purpose  of  fixing  the  liability  of 
the  sureties  upon  such  undertaking,  but  execu- 
tion against  the  insolvent  upon  such  judgment 
shall  be  stayed.  [Amendment  approved  February 
26,  1897;  Stats.  1897,  c.  38.] 

50.  Any  person  who  sliall  have  accepted  any 
preference,  having  reasonable  cause  to  believe 
that  the  same  was  made  or  given  by  the  debt- 
or contrary  to  any  provision  of  this  act,  sliall 
not  prove  the  debt  or  cla-im  oji  account  of  which 
the  preference  was  made  or  given;  nor  shall  he 
receive  any  dividend  thereon  until  he  shall  first 
have    surrendered  to  the    assignee  all    property. 


846  APPENDIX. 

money,  benefit,  or  advantage  received  by  him  un- 
der such  preteronce. 

51.  The  court  may,  upon  the  application  of 
the  assignee,  or  of  any  creditor  of  the  debtor,  or 
without  any  application,  before  or  after  adjudica- 
tion in  insolvency,  examine  upon  oath  the  debtor 
in  relation  to  his  property  and  his  estate  and  any 
person  tendering  or  making  proof  of  claims,  and 
may  subpoena  witnesses  to  give  evidence  relating 
to  such  matters.  All  examinations  of  witnesses 
shall  be  had  and  depositions  shall  be  taken  in 
accordance  with  and  in  the  same  manner  as  is 
provided  by  the  Code  of  Civil  Procedure. 

ARTICLE  VII. 

Discharge. 

52.  At  any  time  after  the  expiration  of  three 
months  from  the  adjudication  of  insolvency, 
but  not  later  than  one  year  from  such  adjudica- 
tion, unless  the  property  of  the  insolvent  has  not 
been  converted  into  money,  the  debtor  may  apply 
to  the  court  for  a  discharge  from  his  debts,  and 
the  court  shall  thereupon  order  notice  to  be  given 
to  all  creditors  who  have  proved  their  debts,  to 
appear,  on  a  day  appointed  for  that  purpose,  and 
show  cause  why  a  discharge  should  not  be  granted 
to  the  debtor;  said  notice  shall  be  given  by  mail 
and  by  publication  at  least  once  a  week,  for  four 
weeks,  in  a  newspaper  published  in  the  county,  or 
city  and  county,  or,  if  there  be  none,  in  a  news- 
pai'er  published  nearest  such  county,  or  city  and 
county:  provided,  that  if  no  debts  have  been 
l)roven,  such  notice  shall  not  be  required. 

53.  No  discharge  shall  be  granted,  or  if  grant- 
ed shall  be  valid,  if  the  debtor  shall  have  sworn 
falsely  in  his  affidavit  annexed  to  his  peti- 
tion, schedule,  or  inventory,  or  upon  any  exam- 
ination in  the  course  of  the  proceedngs  in  insol- 
venc.v,  in  relation  to  any  material  fact  concerning 
his  estate,  or  his  debts,  or  to  any  other  material 


APPENDIX.  847 

fact;  or  if  he  has  concealed  any  part  of  his  es- 
tate or  effects,  or  any  bool^s  or  writing  relating 
thereto;  or  if  he  has  been  guilty  of  fraud  or  will- 
ful neglect  in  the  care,  custody,  or  delivery  to  the 
assignee  of  the  property  belonging  to  him  at  the 
time  of  the  presentation  of  his  petition  and  in- 
ventory, excepting  such  i)roperty  as  he  is  per- 
mitted to  retain  under  the.  provisions  of  this  act, 
or  if  he  has  caused  or  permitted  any  loss  or  de- 
struction thereof;  or  if,  within  one  month  before 
the  commencement  of  such  proceedings,  he  has 
procured  his  lands,  goods,  moneys,  or  chattels  to 
be  attached,  or  seized  on  execution;  or- if  he  has 
destroyed,  mutilated,  altered,  or  falsified  any  of 
his  boolvs,  documents,  papers,  writings,  or  secu- 
rities, or  has  made,  or  been  privy  to  the  mak- 
ing of,  any  false  or  fraudulent  entry  in  any  book 
of  account  or  other  document  with  intent  to  de- 
fraud his  creditors;  or  if  he  has  given  any  fraud- 
ulent preference,  contrary  to  the  provisions  of  this 
act,  or  made  any  fraudulent  payment,  gift,  trans- 
fer, conveyance,  or  assignment  of  any  part  of  his 
properly,  or  has  lost  any  part  thereof  in  gam- 
ing, or  has  admitted  a  false  or  fictitious  debt 
against  his  estate;  or,  if,  having  knowledge  that 
any  person  has  proven  such  false  or  fictitious  debt, 
he  has  not  disclosed  the  same  to  his  assignee 
within  one  month  after  such  knowledge;  or  if, 
being  a  merchant  or  tradesman,  he  has  not,  sub- 
sequently to  the  passage  of  this  act,  kept  proper 
books  of  account;  or  if  he,  or  any  other  person 
on  his  account,  or  in  his  behalf,  has  influenced  the 
action  of  any  creditor,  at  any  stage  of  the  pro- 
ceedings, by  any  pecuniarj-  consideration  or  obli- 
gation; or  if  he  ha,s,  in  contemplation  of  becom- 
ing insolvent,  made  any  pledge,  payment,  transfer, 
assignment,  or  conveyance  of  any  part  of  his  prop- 
erty, directly  or  indirectly,  absolutely  or  condi- 
tionally, for  the  purpose  of  preferring  any  creditor 
or  person  having  a  claim  against  him,  or  who  is. 


848  APPENDIX. 

or  may  be,  under  liability  for  him,  or  for  the  pur- 
pose of  preyenting  tlie  property  from  cominj?  into 
the  hands  of  the  assignee,  or  of  being  distributed 
under  this  act  in  satisfaction  of  his  debts;  or  if  he 
has  been  convicted  of  any  misdemeanor  under  this 
act,  or  has  been  guilty  of  fraud  contrary  to  the 
true  intent  of  this  act:  or,  in  case  of  voluntary 
insolvency,  has  received  the  benefits  of  this  or 
any  other  act  of  insolvency  or  bankruptcy,  within 
three  years  next  preceding  his  application  for  dis- 
charge; or  if  insolvency  proceedings  in  which  he 
could  have  npplied  for  a  discharge  are  pending 
by  or  against  him  in  the  Superior  Court  of  any 
other  county,  or  city  and  county,  in  the  State. 
And  before  any  discharge  is  granted,  the  debtor 
shall  take  and  subscribe  an  oath  to  the  effect 
that  he  has  not  done,  suffered,  or  been  privy  to 
any  act,  matter,  or  thing  specified  in  this  act,  as 
grounds  for  withholding  such  discharge  or  as  in- 
validating such  discharge,   if  granted. 

54.  Any  creditor  opposing  the  discharge  of  a 
debtor  shall  file  specifications  in  writing,  of  the 
grounds  of  his  opposition,  and  after  the  debtor  has 
filed  and  served  his  answer  thereto,  which  plead- 
ings shall  be  verified,  the  court  shall  try  the  is- 
sue or  issues  raised,  with  or  without  a  jury,  ac- 
cording to  the  practice  provided  by  law  in  civil 
actions. 

55.  If  it  sliall  appear  to  the  court  that  the 
debtor  has  in  all  things  conformed  to  his  duty  un- 
der this  act,  and  that  he  is  entitled  under  the 
provisions  thereof  to  receive  a  discharge,  the 
court  shall  grant  him  a  discharge  from  all  his 
debts,  except  as  hereinafter  provided,  and  shall 
give  him  a  certificate  thereof,*  under  the  seal  of 
the  court,  in  substance  as  follows:  In  the  Su- 
perior Court  of  the  county  of ,  State  of  Califor- 
nia. Whereas. has  been  duly  adjudged  an  in- 
solvent under  the  insolvent  laws  of  this  State, 
and  appears  to  have  conformed  to  all  the  require- 


APPENDIX.  849 

mcuts  of  law  in  that  behalf,  it  is  therefore  ordered 

by  the  court  that  said  be  forever  discharged 

from  all  debts  aud  claims,  which  by  said  insol- 
vent laws  are  made  provable  against  his  estate, 

and  which  existed  on  the day  of ,  on  which 

the  petition  of  adjudication  Avas  filed  by  (or 
against)  him.  excepting  such  debts,  if  auj^.  as  are 
by  said  insolvent  laws  excepted  from  the  opera- 
tion of  a  discharge  in  insolvency.     Given  under 

i]iv  hand,  aud  the  seal  of  the  court,  this  day 

of ,  A.  D. .    Attest: .  Clerk.     (Seal)  , 

Judge. 

56.  No  debt  created  by  fraud  or  embezzle- 
nipnt  of  the  debtor,  or  his  defalcation  as  a  public 
officer,  or  while  acting  in  a  fiduciary  character, 
shall  be  discliarged  under  this  act,  but  the  debt 
may  be  proved,  and  the  dividend  thereon  shall 
be  a  payment  on  account  of  said  debt;  and  no  dis- 
charge granted  under  this  act  sliall  release,  dis- 
charge, or  affect  any  person  liable  for  the  same 
debt,  for  or  with  the  debtor,  either  as  partner, 
joint  contractor,  indorser.  surety,  or  otherwise. 

57.  A  discharge,  duly  granted  under  this  act. 
shnll.  with  the  exceptions  aforesaid,  release  the 
debtor  from  all  claims,  debts,  liabilities,  and 
demands,  set  forth  in  his  schedule,  or  which  were 
or  might  have  been  proved  against  his  estate  in 
insolvency,  and  may  be  pleaded  by  a  simple  aver- 
ment that  on  the  day  of  its  date  such  discharge 
was  granted  to  him,  setting  forth  the  same  in 
full,  and  the  same  shall  be  a  complete  bar  to  all 
suits  brought  on  any  such  debts,  claims,  liabili- 
ties, or  demands,  and  the  certificate  shall  be  prima 
facie  evidence  in  favor  of  such  fact  and  of  the 
regularity  of  such  discharge;  provided,  however, 
that  any  creditor  of  said  debtor,  whose  debt  was 
proved  or  provable  against  the  estate  in  insol- 
vency, who  shall  see  fit  to  contest  the  validity  of 
such  discharge  on  the  ground  that  it  was  fraud- 
ulently obtained,  aud  who  has  discovered  the  facts 


850  .  .  APPENDIX. 

constituting  the  fraud  subsequent  to  the  discharge, 
may,  at  any  time  within  t^Yo  years  after  the  date 
thereof,  apply  to  the  court  which  granted  it  to 
set  it  aside  and  annul  the  same,  or  if  the  same 
shall  have  been  pleaded,  the  effect  thereof  may  be 
avoided  collnterally   upon   any  such   grounds. 

58.  The  refusal  of  a  discharge  to  the  debtor 
shall  not  Mffect  the  administration  and  distribution 
of  his  estate  under  the  provisions  of  this  act. 

ARTICLE  Till. 
Fraudulent  Preferences  and  Transfers. 

59.  If  any  debtor  being  insolvent,  or  in  con- 
templation of  insolvency,  within  one  month  be- 
fore the  tiling  of  a  petition  by  or  against  him, 
with  a  view  to  give  a  preference  to  any  creditor, 
or  person  having  a  claim  against  him,  or  who  is 
under  any  liability  for  him,  procures  any  part  of 
his  property  to  be  attached,  sequestered,  or  seized 
on  execution,  or  makes  any  payment,  pledge, 
mortgage,  assignment,  transfer,  sale,  or  convey- 
ance of  any  part  of  his  property,  either  directly 
or  indirectly,  absolutely  or  conditionally,  to  any 
one,  the  person  receiving  such  payment,  pledge, 
mortgage,  assignment,  transfer,  sale,  or  convey- 
ance, or  to  be  benefited  thereby,  or  by  such  at- 
tachment or  seizure,  having  reasonable  cause  to 
believe  that  such  debtor  is  insolvent,  and  that 
such  attachment,  seizure,  payment,  pledge,  mort- 
gage, conveyance,  transfer,  sale,  or  assignment  is 
made  with  a  view  to  prevent  his  property  from 
coming  to  his  assignee  in  insolvency,  or  to  prevent 
the  sanje  from  being  distributed  ratably  among  his 
creditors,  or  to  defeat  the  object  of,  or  in  any 
way  hinder,  impede,  or  delay  the  operation  of,  or 
to  evade  any  of  the  provisions  of  this  act,  such 
attachment,  sequestration,  seizure,  payment, 
pledge,  mortgage,  transfer,  sale,  assignment,  or 
conveyance,  is  void,  and  the  assignee,  or  the  re- 


APPENDIX.  851 

ooiver,  may  recover  the  property,  or  the  value 
thereof,  as  assets  of  such  insolvent  debtor;  and  if 
such  payment,  pledge,  mortgage,  conveyance,  sale, 
assignment,  or  transfer  is  not  made  in  the  usual 
and  ordinary  course  of  business  of  the  debtor,  or 
if  such  seizure  or  sequestration  is  made  under  a 
judgment  which  the  debtor  has  confessed  or  of- 
fered to  allow,  that  fact  shall  be  prima  facie  evi- 
dence of  fraud.  Ail  assignments,  transfers,  con- 
veyances, mortgages,  or  encumbrances  of  real  es- 
tate shall  be  deemed,  under  this  section,  to  have 
been  made  at  the  time  the  instrument  conveying 
or  affecting  such  realty  was  filed  for  record  in  the 
county  recorder's  office  of  the  county,  or  city  and 
county,  Avhere  the  same  is  situated. 

ARTICLE    IX. 

Penal  Clauses. 
60.  From  and  after  the  tailing  effect  of  this 
act,  if  any  debtor  or  insolvent  shall,  after  the 
commencement  of  proceedings  in  insolvency,  se- 
crete or  conceal  any  property  belonging  to  his  es- 
tate, or  part  with,  conceal,  or  destroy,  alter,  mu- 
tilate, or  falsify,  or  cause  to  be  concealed,  de- 
stroyed, altered,  mutilated,  or  falsified,  any  book, 
deed,  document,  or  writing  relating  thereto,  or  re- 
move, or  cause  to  be  removed,  the  same  or  any 
part  thereof,  with  intent  to  prevent  it  from  com- 
ing into  the  possession  of  the  assignee  in  insol- 
vency, or  to  hinder,  impede,  or  delay  his  assignee 
in  recovering  or  receiving  the  same,  or  make  any 
payment,  gift,  sale,  assignment,  transfer,  or  con- 
veyance of  any  property  belonging  to  his  estate, 
with  like  Intent,  or  shall  spend  any  part  thereof 
in  gaming;  or  shall,  with  intent  to  defraud,  will- 
fully and  fraudulently  conceal  from  his  assignee, 
or  fraudulently  or  designedly  omit  from  his  sche- 
dule any  property  or  effects  whatsoever;  or  if,  in 
case  of  any  person  having,  to  his  knowledge  or  be- 


802  APPENDIX. 

lief,  proved  a  false  or  fictitious  debt  against  his 
estate,  he  shall  fail  to  disclose  the  same  to  his 
assignee  within  one  month  after  coming  1;o  the 
knowledge  or  belief  thereof;  or  shall  attempt  to 
account  for  any  of  his  property  by  fictitious  losses 
or  expenses;  or  shall,  within  three  months  before 
commencement  of  proceedings  of  insolvency,  un- 
der the  false  pretense  of  carrying  on  business  and 
dealing  in  the  ordinary  course  of  trade,  obtain  on 
credit  from  any  person  any  goods  or  chattels,  with 
intent  to  defraud ;  or  shall,  with  intent  to  defraud 
his  creditors,  within  three  months  next  before  the 
commencement  of  proceedings  in  insolvency, 
pawn,  pledge,  or  dispose  of,  otherwise  than  by 
bona  tide  transactions  in  the  ordinary  way  of  his 
trade,  any  of  his  goods  and  chattels  which  have 
been  obtained  on  credit  and  remain  unpaid  for, 
he  shall  be  deemed  guilty  of  misdemeanor,  and, 
upon  conviction  thereof,  shall  be  punished  by  im- 
prisonment in  the  county  jail  for  not  less  than 
three  months  nor  more  than  two  years. 

AKTICLE  X. 

Miscellaneous. 

61.  If  any  debtor  shall  die  after  the  order 
of  adjudication,  the  proceedings  shall  be  con- 
tinued and  concluded  in  like  manner  and  with  like 
validity  and  effect  as  if  he  had  lived. 

62.  Pending  proceedings  by  or  against  any 
person,  copartnership,  or  corporation,  no  statute  of 
limitations  of  this  State  sliall  run  against  a  claim 
which  in  its  nature  is  provable  against  the  estate 
of  the  debtor. 

63.  Any  creditor,  at  any  &tage  of  the  proceed- 
ings, may  be  represented  by  his  attorney  or  duly 
authorized  agent. 

64.  It  shall  be  the  duty  of  the  court  hav- 
ing jurisdiction  of  the  proceedings  to  exempt  and 
set  apart,  for  tlie  use  and  l)enefit  of  said  insolvent. 


APPENDIX.  853 

such  real  and  personal  property  as  is  by  law  ex- 
empt from  execution;  and  also  a  homestead,  in  the 
manner  provided  in  section  one  thousand  four 
hundred  and  sixty-five  of  the  Code  of  Civil  Pro- 
cedure. But  no  property  or  homestead  shall  be 
set  apart,  as  aforesaid,  until  it  is  first  proved  that 
notice  of  the  hearinu*  of  the  application  therefor 
has  been  duly  given  by  the  clerk,  by  causing  to  be 
posted  in  at  least  three  public  places  in  the  county 
at  least  ten  days  prior  to  the  time  of  such  hearing, 
setting  forth  the  name  of  said  insolvent  debtor, 
and  tiie  time  and  place  appointed  for  the  hearing 
of  such  application,  which  said  notice  shall  briefly 
indicate  the  homestead  sought  to  be  exempted  or 
the  propertj^  sought  to  be  set  aside;  and  the  de- 
cree must  show  that  such  proof  was  made  to  the 
satisfaction  of  the  court,  and  shall  be  conclusive 
evidence  of  that  fact, 

65.  The  filing  of  a  petition  by  or  against  a 
debtor  upon  which,  or  upon  an  amendment  of 
Avhir-h,  an  order  of  adjudication  in  insolvency  may 
be  made,  shall  be  deemed  to  be  the  commence- 
ment of  proceedings  in  insolvency  under  this  act. 

66.  Words  used  in  this  act  in  the  singular,  in- 
clude the  plural,  and  in  the  plural,  the  singular, 
and  the  word  "debtor"  includes  partnerships  and 
corporations, 

67.  Upon  the  filing  of  either  a  voluntary 
or  involuntary  petition  in  insolvency,  a  receiver 
may  be  appointed  by  the  court  in  which  the  pro- 
ceeding is  pending,  or  by  a  judge  thereof,  at  any 
time  before  the  election  of  an  assignee,  when  it 
appears  by  the  verified  petition  of  a  creditor  that 
the  assets  of  the  insolvent,  or  a  considerable  por- 
tion thereof,  have  been  pledged,  mortgaged,  trans- 
ferred, assigned,  conveyed,  or  seized,  on  legal  pro- 
cess, in  contravention  or  violation  of  the  provisions 
of  section  fifty-nine  of  this  act,  and  that  it  is  nec- 
essary to  commence  an  action  to  recover  the  same. 
The  appointment,  oath,  undertaking  and  powers 

Code  Civ.    Proc— 72. 


S54  APPENDIX. 

of  such  receiver  shall  in  all  respects  be  res:nlated 
by  the  general  laws  of  the  state  applicable  to  re- 
ceivers. When  an  assignee  is  chosen,  and  has 
qualified,  the  receiver  shall  forthwith  return  to 
court  an  account  of  the  assets  and  property  which 
have  come  into  his  possession,  and  of  his  dis- 
bursements, and  a  report  of  all  actions  or  pro- 
ceedings commenced  by  him  for  the  recovery  of 
any  property  belonging  to  the  estate,  and  the 
court  shall  thereupon  summarily  hear  and  settle 
the  receiver's  account,  and  shall  allows  him  a  just 
compensation  for  his  services,  including  a  rea- 
sonable attorney's  fee,  whereupon  the  receiver 
shall  deliver  all  property,  assets,  or  effects  re- 
maining in  his  hands,  to  the  assignee,  who  shall 
be  substituted  for  the  receiver  in  all  pending  ac- 
tions or  proceedings. 

68.  All  sections  of  the  Code  of  Civil  Proced- 
ure of  the  state  of  California  relating  to  con- 
tempts are  hereby  made  applicable  to  all  proceed- 
insrs  under  this  act. 

69.  When  an  attachment  has  been  made  and 
is  not  dissolved  before  the  commencement  of 
proceedings  in  insolvency,  or  is  dissolved  by  an 
undertaking  given  by  the  defendant,  if  the  claim 
upon  which  the  attachment  suit  was  commenced 
is  proved  against  the  estate  of  the  debtor,  the 
plaintiff  may  prove  the  legal  costs  and  disburse- 
ments of  the  suit,  and  of  the  keeping  of  the  prop- 
erty, and  the  amount  thereof  shall  be  a  preferred 
debt.  In  all  contested  matters  in  insolvency  the 
court  may,  in  its  discretion,  award  costs  to  either 
party,  to  be  paid  by  the  other,  or  to  either  or  both 
parties,  to  be  paid  out  of  the  estate,  as  .justice  in 
equity  may  require;  in  awarding  costs,  the  court 
may  issue  execution  therefor,  in  all  involuntary 
cases  under  this  act,  the  court  shall  allow  the  pe- 
titioning creditors  out  of  the  estate  of  the  debtor, 
if  any  adjudication  of  insolvency  be  made,  as  a 
preferred  claim,  all  legal  costs  and  disbursements 
incurred  by  them  in  that  behalf. 


APPENDIX.  855 

70.  The  court  may,  upon  the  application  of  the 
debtor,  if  it  be  a  voluntary  petition,  or  of  the  peti- 
tioning creditors,  if  a  creditor's  petition,  dismiss 
the  petition  and  discontinue  the  proceedings  at 
any  time  before  the  appointment  of  an  assignee, 
upon  giving  ten  days'  notice  to  the  creditors,  in 
the  same  manner  that  notice  of  the  time  and  place 
of  an  election  of  an  assignee  is  given,  if  no  cred- 
itor files  written  objections  to  such  dismissal;  pro- 
vided, however,  that  by  consent  of  all  creditors 
the  proceedings  may  be  dismissed  at  any  time; 
After  the  appointment  of  an  assignee,  no  dismis- 
sal shall  be  made  without  the  consent  of  all  par- 
ties interested  in  or  affected  thereby. 

71.  An  appeal  may  be  taken  to  the  Supreme 
Court  in  the  following  cases: 

1.  From  an  order  granting  or  refusing  an  ad- 
judication of  insolvency; 

2.  From  an  order  made  at  the  hearing  of  any 
account  of  an  assignee,  allowing  or  rejecting  a 
creditor's  claim,  in  whole  or  in  part; 

3.  From  an  order  granting  or  overruling  a  mo- 
tion for  a  new  trial; 

4.  From  an  order  settling  an  account  of  an  as- 
signee; 

5.  From  an  order  against  or  in  favor  of  set- 
ting apart  homestead  or  other  property  claimed  as 
exempt  from  execution; 

G.  From  an  order  granting  or  refusing  a  dis- 
charge to  the  debtor. 

The  notice,  undertaking,  and  procedure  on  ap- 
peal shall  conform  to  the  general  laws  of  this  state 
regulating  appeals  in  civil  cases,  except  that  when 
an  assignee  has  given  an  official  undertaking  and 
appeals  from  a  judgment  or  order  in  insolvency, 
his  official  undertaking  stands  in  the  place  of  an 
undertaking  on  appeal,  and  the  sureties  therein 
are  liable  on  such  undertaking;  provided,  how- 
ever, that  an  appeal  from  an  order  granting  or  re- 
fusing an  adjudication  of  insolvency  shall  not 
stay  proceedings  unless  a  written  undertaking  be 


856  APPENDIX. 

entered  mto  on  the  part  of  the  appellant,  with 
at  least  two  sureties,  In  such  an  amount  as  the 
court,  or  a  judge  thereof,  may  direct,  but  not  less 
than  double  the  value  of  the  property  involved, 
to  the  effect  that  if  the  order  appealed  from  be 
affirmed,  or  the  appeal  dismissed,  appellant  will 
pay  all  costs  and  damages  which  the  adverse  par- 
ty may  sustain  by  reason  of  the  appeal  and  the 
stay  of  proceedings. 

72.  The  Insolvent  Act  of  eighteen  hundred 
and  eighty,  and  all  amendments  thereto,  are 
hereby  repealed;  provided,  however,  that  such  re- 
peal shall  in  no  mnnner  invalidate  or  affect  any 
case  in  insolvency  instituted  and  pending  in  any 
court  on  and  prior  to  the  day  when  this  act  shall 
take  effect. 


INTERPRETERS. 


An  Act  to  authorize  the  appointment  of  an  In- 
tepreter  of  the  Italian  language  and  dialects, 
in  Criminal  Proceedings,  in  cities,  and  cities 
and  counties,  of  one  hundred  thousand  inhab- 
itants. 

§  1.    Appointment  of  interpreter. 
§  2.     Salary. 
§  3.    Repeal. 

Section  1.  In  all  cities  and  cities  and  counties 
of  over  one  hundred  thousand  inhabitants,  where 
an  interpreter  of  the  Italian  language  is  necessary, 
it  shall  be  the  duty  of  the  mayor  and  police  judge 
of  such  city,  or  city  and  county,  and  of  the  judge 
of  the  Superior  Court  of  said  city  and  county,  or 
of  the  county  in  which  said  city  is  situated,  or 
where  there  are  more  judges  than  one,  then  it 
shall  be  The  duty  of  the  presiding  judge  of  said 
Sui^erior  Court,  and  the  presiding  judge  of  the 
police  court  and  the  mayor,  to  appoint  an  interpre- 


APPENDIX.  857 

ter  of  the  Italian  language,  who  must  be  able  to 
interpret  the  Italian  language  and  dialects  into  the 
English  language,  to  be  employed  in  criminal  pro- 
ceedings when  necessary  in  said  cities,  or  cities 
and  counties.  [Amendment  approved  March  9, 
1895.1 

Sec.  2.  This  act  shall  take  effect  immediately. 
[Stats.  1895.] 

Sec.  2.  The  said  interpreter  shall  receive  a  sal- 
ary of  one  thousand  five  hundred  dollars  per  an- 
num, which  shall  be  paid  out  of  the  general  fund 
of  such  city,  or  city  and  county. 

Sec.  3.  This  act  shall  not  repeal  any  act  here- 
tofore made  and  now  in  force  for  the  appointment 
of  interpreters,  except  so  much  of  any  act  which 
may  conflict  with  this  act  in  the  appointment  of 
Italian  interpreters. 

Sec.  4.  This  act  shall  tali:e  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  12, 
1885;  1885,  108.] 


JUSTICES  OP  THE  PEACE. 

An  A(\  fixing  Jurisdiction  and  providing  Compen- 
sation for  Justices  of  tlie  Peace  in  cities  and 
towns. 

§  1.     Powers    of   justice   of   the   peace. 
§  2.     Compensation. 

I*owers  of  justices  of  the  peace. 

Section  1.  Justices  of  the  peace  in  any  town- 
ship composed  in  whole  or  in  part  of  an  incorpo- 
rated city  or  town,  and  justices  of  the  peace  in  any 
city  or  town,  in  addition  to  the  jurisdiction  and 
powers  now  conferred  upon  them,  are  authorized 
and  empowered  to  exercise  all  powers,  duties,  and 
jurisdiction,  civil  and  criminal,  of  police  judges, 
judges  of  police  courts,  recorders'  courts,  or  may- 
ors' courts  within  such  cities. 


858  APPENDIX. 

Compensation. 

Sec.  2.  The  compensation  of  the  justice  of  the 
peace  of  any  city  or  town,  who  is  paid  by  salary, 
shall  be  by  warrants  for  equal  monthly  payments, 
drawn  each  month  upon  the  salary  fund  of  such 
city  or  town  if  there  be  one;  or  if  no  salary  fund 
be  provided,  then  upon  the  general  fund  of  such 
city  or  town,  such  warrants  to  be  audited  and  paid 
as  are  salaries  of  oth  er  city  olTicials. 

Sec.  3.  This  act  shall  talvc  effect  immediately. 
[Approved  March  9,  1883;  1883,  63.] 


An  Act  concerning  the  Justices'  Courts  of  the 
City  and  County  of  San  Francisco,  and  the 
service  of  Summons  issued  therefrom. 

Summons. 

Section  1.  The  summons  issued  from  the  jus- 
tices' courts  may  be  served  and  returned  as  pro- 
vided in  Title  Y.,  Part  II.,  of  the  Code  of  Civil 
Procedure. 

Sec.  2.  This  act  shall  take  effect  from  and  after 
its  passage.     [Approved  April  3,  1876;  1875-6,  855.] 


An  Act  to  create  a  Court  in  and  for  the  Town  of 
Berkeley,  State  of  California. 

9  1.  Justice  court  in  Berkeley. 

§  2.  Two  justices. 

§  3.  Jurisdiction. 

§  4.  Rules  of  practice. 

§  5.  Fees. 

§  6.  Fines. 

§  7.  Compensation. 

§  8.  Disqualification. 

Section  1.  There  is  hereby  created  and  estab- 
lished in  and  for  the  town  of  Berkeley,  State  of 
California,  a  court,  to  be  known  as  the  justice's 


APPENDIX.  859 

court  of  the  town  of  Berkeley,  which  court  shall 
consist  of  two  justices  of  the  peace,  and  the  judi- 
cial power  of  the  town  shall  be  vested  in  said 
justice's  court  and  such  other  courts  as  may  be 
provided  by  law. 

Sec.  2.  Two  justices  of  the  peace  shall  be  elect- 
ed at  the  time  that  other  justices  are  elected, 
whose  terms  of  office  shall  be  two  years;  provided, 
that  the  two  justices  elected  for  the  town  of 
Berlveley  at  the  general  election  held  November 
sixth,  eighteen  hundred  and  ninetj-four,  shall  hold 
office  as  justices  of  the  town  of  Berl^eley  until  the 
first  Monday  in  January,  eighteen  hundred  and 
ninety-seven.  The  justices'  courts  shall  always 
be  open,  legal  holidays  excepted. 

Sec.  3.  The  justice's  court  and  the  justice  there- 
of, shall  have  jurisdiction  concurrently  with  other 
justices'  courts  of  all  actions  and  proceedings, 
civil  and  criminal,  arising  within  the  corporate 
limits  of  the  town,  and  which  might  be  tried  in  a 
justice's  court;  provided,  however,  that  within  the 
corporate  limits  of  the  town,  the  town  justices  of 
the  peace  and  the  town  justices'  courts  shall  have 
exclusive  jurisdiction  and  poAver  over  all  actions 
for  the  recovery  of  any  tine,  penalty,  or  forfeiture 
prescribed  for  the  breach  of  any  ordinance  of  the 
town,  of  all  actions  founded  upon  any  obligations 
or  liability  created  by  any  ordinance,  and  of  all 
prosecutions  for  any  violation  of  any  ordinance; 
provided,  moreover,  that  the  board  of  trustees 
may,  by  ordinance,  select  both  or  either  of  said 
justices  to  have  jurisdiction  of  all  criminal  prose- 
cutions arising  under  ordinance. 

Sec.  4.  The  rules  of  practice  and  mode  of  pro- 
ceeding shall  be  the  same  as  are  or  may  here- 
after be  prescribed  for  justices'   courts. 

Sec.  5.  The  justices  of  the  peace  shall  be  enti- 
tled to  charge  and  receive  for  their  services  such 
fees  as  are  or  may  be  allowed  by  law  to  justices 
of  the  peace  for  lilve  'services,  and  to  collect  said 


860  APPENDIX. 

fees  ill  the  same  manner  as  other  justices'  fees  are 
collected,  excepting  that  for  their  services  in  crim- 
inal ])roseciition  for  violation  of  ordinances  they 
shall  be  entitled  to  receive  only  such  fees  or  sal- 
ary as  the  board  of  trustees  may  by  ordinance 
prescribe,  which  compensation,  when  once  fixed, 
shall  not  be  altered  Avithin  two  years  thereafter. 

Sec.  6.  Each  justice  of  the  peace  shall  pay  to 
the  treasurer  of  said  town,  on  the  first  Monday  of 
each  month,  all  fines  by  him  collected  for  violation 
of  ordinances,  and  file  a  full  monthly  report  with 
the  town  clerlv,  showing  the  amount  of  all  fees 
collected,  from  Avhom,  and  in  what  case  such 
fines  and  fees  were  collected  and  paid. 

Sec.  7.  The  board  of  trustees  may,  at  their  op- 
tion, by  ordinance,  fix  a  monthly  compensation  for 
such  justices,  which  said  compensation  shall  be 
in  full  for  all  services  rendered  as  justices;  pro- 
vided, that  when  such  monthly  compensation  is  so 
fixed  all  fees  and  fines,  other  than  those  required 
by  law  to  be  paid  lo  the  county,  shall  be  paid  to 
the  town  treasurer. 

Sec.  8.  In  all  cases  where  for  any  reason  either 
of  the  justices  is  disqualified,  or  in  any  case  of 
siclvuess  or  inability  to  act,  he  may  call  in  the 
other  justices,  and  if  both  are  disqualified  or  una- 
ble to  act,  any  justice  of  the  peace  residing  in  the 
county. 

Sec.  9.  This  act  shall  talve  effect  immediately 
after  its  passage.  [Approved  March  27,  1895; 
Stats.  1895,  p.  204.] 


An  Act  in  relation  to  Jurors  in  Courts  of  Justices 
of  the  reace  in  the  County  of  Humboldt. 

Cause  of  challenge  in  justice's  court  in  Humboldt 
count3^ 
Sec.  1.    In  the  trial  of  any  civil  action  in  the 
court  of  a  justice  of  the  peace,  in  the  county  of 


APPENDIX.  861 

Humboldt,  it  shall  be  a  jjood  cause  of  challenge 
to  auy  individual  juroi"  that  he  has  served  as  a 
trial  juror  in  a  civil  action  in  said  court,  in  the 
same  township,  twice  at  any  time  within  one  year 
next  preceding. 

Sec.  2.  Jurors  in  said  courts  shall  receive,  as 
compensation  for  their  services,  the  sum  of  two 
dollars  per  day.  [Approved  March  3,  1874;  1873-4, 
229.] 


An  Act  relative  to  Executions  from  Courts  of  Jus- 
tices of  the  Peace  of  the  several  Townships  of 
the  County  of  Alameda. 

This  act,  which  required  executions  from  jus- 
tices' courts  to  be  served  by  the  sheriff  or  a  con- 
stable of  the  township  in  which  the  court  issuing 
it  was  held,  was  repealed  by  act  of  April  1,  1880, 
19  (Ban.  ed.  62).  Took  effect  from  passage.  [Ap- 
proved P^ebruary  2o,  ]S78;  1877-8,  lOG.] 


LIBEL. 

An  Act  concerning  Actions  for  Libel  and  Slander. 

§  1.  Undertaking. 

§  2.  Sureties. 

§  3.  Exceptian   to  sureties. 

S  4.  Justification. 

§  5.  Approval— new   mortgage. 

§  fi.  Failure  to  file  bond. 

§  7.  Costs. 

Section  1.  In  an  action  for  libel  or  slander  the 
clerlv  shall,  before  issuing  the  summons  therein, 
require  a  AA^ritten  undertaking  on  the  part  of  the 
plaintiff  in  the  sum  of  five  hundred  (.500  dollars, 
with  nt  least  two  competent  and  sufficient  sureties, 
specifying  their  occupations  and  residences,  to  the 


832  APPENDIX. 

effect  that  if  the  nctioii  be  dismissed  or  the  defend- 
ant recover  judgment,  that  they  will  pay  such- 
costs  and  charges  as  may  be  awarded  against  the 
plaintiff  by  judgment,  or  in  the  progress  of  the 
action,  or  on  an  appeal,  not  exceeding  the  sum. 
specified  in  the  undertaking.  An  action  brought 
without  filing  the  undertaking  required  shall  be 
dismissed. 

Sec.  2.  Each  of  the  sureties  on  the  undertaking 
mentioned  in  the  first  section  shall  annex  to  the- 
same  an  afiidavit  that  he  is  a  resident  and  house- 
holder or  freeholder  within  the  county,  and  is 
worth  double  the  amount  specified  in  the  under- 
taking, over  and  above  all  his  just  debts  and  lia- 
bilities, exclusive  of  property  exempt  from  execu- 
tion. 

Sec.  3.  Within  ten  days  after  the  service  of  the 
summons  the  defendants,  or  either  of  them,  may 
give  to  the  plaintiff  or  his  attorney  notice  that 
they  or  he  except  to  the  sureties  and  require  their 
justification  before  a  judge  of  the  court  at  a  spe- 
cified time  and  place,  the  time  to  be  not  less  than 
five  nor  more  than  ten  days  thereafter,  except  by 
consent  of  parties.  The  qualifications  of  the  sure- 
ties shall  be  as  required  in  their  affidavits.  [In 
effect  April  16,  1880.] 

Sec.  4.  For  the  purpose  of  justification,  each  of 
the  sureties  shall  attend  before  the  judge  at  the 
time  and  place  mentioned  in  the  notice,  and  may 
be  examined  on  oath  touching  his  sufficiency  in 
such  manner  as  the  judge  in  his  discretion  shall 
think  proper.  The  examination  shall  be  reduced 
to  writing  if  either  party  desires  it. 

Sec.  5.  If  the  judge  find  the  undertaking  suffi- 
cient, he  shall  annex  the  examination  to  the  un- 
dortnking,  and  indorse  his  approval  thereon.  If 
the  sureties  fail  to  appear,  or  the  judge  finds  the 
sureties  or  either  of  them  insufficient,  he  shall  or- 
der a  new  undertaking  to  be  given.  The  judge 
may  also  at  any  time  order  a  new  or  additional 


APPENDIX.  863 

undertaking  upon  proof  that  the  sureties  have  be- 
come iusutticient.  in  case  a  new  or  additional  un- 
dertalving  is  ordered,  all  proceedings  in  the  case 
shall  be  stayed  until  such  undertaking  is  executed 
and  filed,  with  the  approval  of  the  judge. 

Sec.  6.  If  the  undertaking  as  required  be  not 
filed  in  live  days  after  the  order  therefor,  the 
judge  or  court  shall  order  the  action  to  be  dis- 
missed. 

Sec.  7.  In  case  plaintiff  recovers  judgment,  he 
shall  be  allowed  as  costs  one  hundred  (100)  dol- 
lars, to  cover  counsel  fees,  in  addition  to  the  other 
■costs.  In  case  the  action  is  dismissed,  or  the  de- 
fendant recover  judgment,  he  shall  be  allowed  one 
hundred  (100)  dollars,  to  cover  counsel  fees,  in  ad- 
dition to  the  other  costs,  and  judgment  therefor 
shall  be  entered  accordingly.  [Approved  March 
23.  1872;  Stat.  1871-2,  p.  533.] 


MOllTGAGES. 


An  Act  to  abolish  Attorney's     Fees     and     other 
charges  in  Foreclosure  Suits. 

Attorney's  fee  on  foreclosure  to  be  fixed  by  court. 

Section  1.  In  all  cases  of  foreclosure  of  mort- 
gnge  the  attorney's  fee  shall  be  fixed  by  the  court 
in  which  the  proceedings  of  foreclosure  are  had. 
any  stipulation  in  said  mortgage  to  the  contrary 
notwithstanding. 

Sec.  2.  All  acts  and  parts  of  acts,  so  far  as  they 
conflict  with  the  provisions  of  this  act,  are  hereby 
repealed,  and  this  act  shall  take  effect  and  be  in 
force  from  and  after  its  passage.  [Approved 
March  27,  1874;  1873-4,  707.] 


864  APPENDIX. 


PROCESS. 


An  Act  coucerning  tlie  Execution  of  Final  Process 
in  certain  cases. 

Service  of  final  process  in  new  counties. 

Section  1.  In  all  cases  where  new  counties  have 
been  or  may  hereafter  be  erected,  and  executions, 
orders  of  sale  upon  foreclosures  of  mortgages,  or 
other  process  atfecting  specific  real  estate,  have 
been  or  may  hereafter  be  adjudged  by  the  final 
judgment  or  decree  of  a  court  of  competent  juris- 
diction, to  be  executed  by  the  sheriff  of  the  county 
in  which  such  real  estate  was  originally  situated, 
such  process  may  be  executed  by  the  sheriff  of  the 
new  county  in  which  such  real  estate  is  found  to 
be  situated,  with  the  lil^e  effect  as  if  he  were  the 
sheriff  of  the  county  designated  in  the  judgment, 
decree,  or  order  of  sale,  to  execute  the  same. 

Sec.  2.  This  act  shall  talve  effect  and  be  in  force 
from  and  after  its  passage.  [Approved  March  16, 
1874;  1873-4,  365.] 


An  Act  to  declare  valid  Writs,  Process,  and  Certi- 
ficates issued  by  the  Superior  Courts  of  this 
State,  or  the  Clerlis  thereof,  before  such 
Courts  shall  have  been  legally  provided  with 
Seals. 

Writs,  process,  etc.,  declared  valid. 

Section  1.  No  writ,  process,  or  certificate  issued 
by  any  Superior  Court,  or  the  clerli  thereof,  be- 
fore such  court  shall  have  been  legally  provided 
Avith  a  seal,  shall  be  invalid,  if  in  other  respects 
valid,  by  reason  of  the  absence  of  a  lawful  seal; 
but    every     such    writ,     process,     or    certificate, 


APPENDIX.  SG5 

M-lietlior  iiiidei-  the  seal  of  oue  of  the  courts  abol- 
ished ou  the  first  day  of  January,  eighteen  hun- 
dred and  eighty  or  under  the  private  seal  of  the 
clerk,  or  under  any  other  seal,  or  issued  without 
a  seal,  shall  have  the  same  validity  as  if  it  had 
been  authenticated  by  a  legally  adopted  seal  of 
the  court  out  of  which  (tr  by  whose  clerk  it  was  is- 
sued. 

Sec.  2.    This  act  shall  take  effect  immediatelv. 
[Approved  March  31.  1880;  1880,  19  (Ban.  ed.  62."i] 


RECORDS. 

An  Act  to  transfer  the  Records,  Papers,  and  Busi- 
ness of  the  Courts  existing  on  the  thirty-first 
day  of  December,  eighteen  hundred  and  sev- 
enty-nine, in  this  State,  to  the  Courts  now  ex- 
isting therein. 

§  1.     Supreme  Court,   successor  of  court  of  same   name. 

§  2.     Superior  Courts,  successor  of  what  courts. 

§  3.    Police  court  of  San  Francisco,   transfer  of  cases  to. 

Supreme  court,  successor  of  court  of  same  name. 
Section  1.  The  Supreme  Court  shall,  for  all  pur- 
poses, be  considered  the  successor  of  the  court  of 
the  same  name  Avhich  was  abolished  on  the  first 
day  of  January,  eighteen  hundred  and  eighty,  and 
to  have  succeeded  to  all  its  unfinished  business.  It 
shall  have  jurisdiction  of,  and  shall  hear  and  de- 
termine, or  otherwise  dispose  of,  all  causes,  pro- 
ceedings, appeals,  motions,  and  matters  pending 
on  said  day  in  the  court  superseded  by  it;  and 
also,  of  all  appeals  taken  to  such  court  before  or 
after  such  day,  from  judgments  or  orders  of  any 
of  the  inferior  courts  abolished  by  the  constitution. 

Cndo   fix.    Proc— To. 


866  APPENDIX. 

From  and  after  the  first  day  of  January,  eighteen 
hundred  and  eighty,  the  Supreme  Court  shall  have 
the  custody  of  all  records,  books,  and  papers  of 
the  former  Supreme  Court,  and  the  same  jurisdic- 
tion over  its  judgments,  orders,  and  proceedings 
as  if  they  had  in  the  first  instance  been  renaered, 
made,  or  commenced  in  the  present  court.  All 
laws  relating  to  the  former  court  shall,  as  far  as 
applicable,  be  considered  as  applying  to  the  pres- 
ent court.  All  rules  of  the  former  court  which 
were  in  force  on  the  first  day  of  January,  eighteen 
hundred  and  eighty,  and  not  inconsistent  with  the 
constitution,  shall  continue  in  force  as  rules  of  the 
present  court  until  altered,  abolished,  or  super- 
seded by  the  order  of  the  court. 
Superior  courts,  successor  of  what  courts. 

Sec.  2.  The  Superior  Court  of  each  county  in 
this  state  shall,  for  all  purposes,  be  considered  the 
successor  of  the  district,  county,  and  probate 
<iourts  thereof,  and,  in  the  city  and  county  of  San 
Francisco,  of  the  municipal  criminal  court  and  mu- 
nicipal court  of  appeals,  and  shall  be  deemed  to 
have  succeeded  to  all  the  unfinished  business  of 
said  courts.  The  Superior  Courts  shall  hear,  de- 
termine, or  otherwise  dispose  of,  all  causes  and 
proceedings  which  were  pending  on  the  first  day  of 
Januai'y,  eighteen  himdred  and  eighty,  in  the  said 
courts  superseded  by  them,  and  every  motion  or 
proceeding  then  pending  or  thereafter  made  or 
taken  in  such  causes  and  proceedings,  and  of 
which  said  courts  would  have  had  jurisdiction  had 
they  not  been  abolished;  and  also,  all  appeals 
taken  or  perfected,  before  or  after  said  day,  from 
all  orders  or  judgments  of  justices'  and  police 
courts  which  by  law  are  declared  to  be  appeal- 
able. From  and  after  the  first  day  of  January, 
eighteen  hundred  and  eighty,  the  Superior  Courts 
shrill  have  tlie  custody  of  all  the  records,  books, 
and  papers  of  the  said  courts  superseded  by  them, 


APPENDIX.  867 

and  shall  have  jurisdiction  tliereof,  and  of  tlie 
judgments,  orders  and  process  of  said  courts;  and 
shall  enforce  the  same  and  issue  process  thereon 
in  lilie  manner,  and  with  the  same  effect,  as  if 
they  had  in  the  first  instance  been  filed,  com- 
menced, rendered,  made,  or  issued  in  or  by  the 
Superior  Court.  The  Superior  Court  of  the  city 
and  county  of  San  Francisco  shall  have  jurisdic- 
tion of,  and  shall  try  and  dispose  of,  all  indict- 
ments for  misdemeanor  pending  in  the  city  crim- 
inal court  of  said  city  and  county  on  the  first  day 
of  January,  eighteen  htindred  and  eighty;  and 
such  indictments  and  all  papers  and  records  relat- 
ing thereto,  shall  be  transferred  to  the  said  Su- 
perior Court  and  become  records  thereof.  Any 
application,  motion,  or  proceeding,  set  by  t*he  dis- 
trict, cotmty.  or  probate  court  of  any  county,  or  by 
the  judge  thereof,  to  be  heard  by  such  court  or 
judge  after  the  first  day  of  January,  eighteen  hun- 
dred and  eighty,  may  be  heard  in  the  Superior 
Court  of  sucli  county,  upon  the  same  notice  that 
was  I'equired  to  authorize  the  hearing  thereof  iu 
such  district,  county,  or  probate  court,  or  by  the 
judge  thereof.  Any  process  issued  out  of  any 
district,  county,  or  probate  court  of  this  state  be- 
fore the  first  day  of  January,  eighteen  hundred 
and  eighty,  may  be  served,  or  the  service  thereof 
completed,  after  said  day,  in  the  same  manner 
and  with  lilie  effect,  as  if  such  courts  had  not  been 
abolished;  provided,  that  such  process  shall  be  re- 
turned to  the  Superior  Court  of  the  county  in 
which  it  was  issued,  and  nny  appearance  or  an- 
swer required  by  such  process  shall  be  made  or 
filed  in  such  court. 

Police  court  of  San  Francisco,  transfer  of  cases  to. 
Sec.  3.  All  prosecutions  which  were  transferred 
or  certified  for  trial  to  the  city  criminal  court  of 
the  city  and  county  of  San  Francisco,  by  the  po- 
lice court  thereof,  and  were  pending  or  undeter- 


SfiS  APPENDIX. 

mined  oii  the  first  day  of  Jauiiary,  eighteen  hun- 
dred and  eighty,  shall  be  tried  and  disposed  of  in 
the  said  police  court;  and  all  the  papers,  pleadings, 
and  records  relating  to  such  prosecutions  shall  be 
transferred  to,  and  deposited  with,  said  police 
court,  and  become  records  and  papers  thereof. 

Sec.  4.    This  act  shall  take  effect  immediately. 
[Approved  February  4,  1880;  1880,  2  (Ban.  ed.  2)*!] 


STATE. 


An  Act  to  authorize  Suits  against  the  State,  and 
regulating  the  Procedure  therein. 

§  1.  Right  of  action. 

§  2.  Limitation  of  actions. 

§  3.  Undertaking. 

§  4.  Service  of  summons. 

§  5.  Judgment. 

55  fi.  Duty  of  Governor. 

§  7.  Duty  of  Controller. 

Section  1.  All  persons  who  have,  or  shall  here- 
after have,  claims  on  contract  or  for  negligence 
against  the  State  not  allowed  by  the  State  board 
of  examiners,  are  hereby  atithorized,  on  the  terms 
and  conditions  herein  contained,  to  bring  suit 
thereon  against  the  State  in  any  of  the  courts  of 
this  State  of  competent  .I'tirisdiction,  and  prose- 
cute the  same  to  final  judgment.  The  rules  of 
practice  in  civil  cases  shall  apply  to  such  suits. 
except  as  herein  otherwise  provided. 

Sec.  2.  No  such  suit  shall  be  maintained  on  any 
claim  now  existing,  tuiless  the  same  be  brought 
within  two  years  after  this  act  takes  effect: 
nor  shall  any  such  suit  be  maintained  on 
any  cause  of  action  hereafter  arising,  imless 
the  same  shall  be  commenced  witliin  two 
years  after  such  cause  of  action  shall  have  ac- 
crued; provided,  that  the  period  of  limitation  pro- 


APPENDIX.  S69 

vided  for  in  section  two  of  this  act  slinll  not  a])i)ly 
to  or  affect  the  rights,  interest,  or  claims  of  any 
minor  or  insane  person,  or  a  person  imprisoned  on 
a  criminal  charge,  or  In  execution  under  a  sen- 
tence of  a  criminal  court  for  a  period  of  not  less 
than  for  life,  or  a  married  woman  and  her  hus- 
band be  a  necessary  party  with  her  in  commenc- 
ing such  action,  or  an  incompetent  person,  but 
such  action  may  be  commenced  within  the  period 
above  provided  for  after  such  disability  shall 
cease. 

Sec.  3.  At  the  time  of  filing  the  complaint  in 
any  such  suit,  the  plaintiff  shall  tile  therewith  an 
undertalving.  in  such  sum,  not  less  than  five  hun- 
dred dollars,  as  a  .nidge  of  the  court  shall  fix,  with 
two  sufRcient  sureties,  to  be  approved  by  a  judge 
of  the  court,  and  conditioned  that,  in  case  the 
plaintiff  fails  to  recover  judgment,  he  will  pay  all 
costs  incurred  by  the  State  in  such  suit,  including 
a  reasonable  counsel  fee,  to  be  tixed  by  the  court. 

Sec.  4.  Service  of  summons  in  such  suits  shall 
be  made  on  the  governor  and  attorney  general.  It 
shall  be  the  duty  of  the  attorney  general  to  defend 
all  such  suits;  and  upon  his  written  demand,  made 
at  or  before  the  time  of  answering,  the  place  of 
trial  of  any  such  suit  must  be  changed  to  the 
county  of  Sacramento. 

Sec.  .5.  In  case  judgment  be  rendered  for  the 
plaintiff  in  any  such  suit,  it  shall  be  for  the 
amount  actually  due  from  the  State  to  the  plain- 
tiff, with  legal  interest  thereon,  from  the  time  the 
obligation  accrued,   and  Avithout  costs. 

Sec.  C),  It  shall  be  the  duty  of  the  governor  to 
report  to  the  legislature,  at  each  session,  all  judg- 
ments rendered  against  the  State,  and  not  there- 
tofore reported. 

Sec.  7.  It  shall  be  the  duty  of  the  controller  to 
draw  his  warrant  for  the  payment  of  any  such 
judgment,  without  any  presentation  to  or  approval 


870  APPENDIX. 

of  such  claim  by  the  State  board  of  examiners, 
whenever  a  sufficient  appropriation  for  such  pay- 
ment shall  have  been  made  by  the  legislature; 
and  all  claims  upon  such  judgments  are  hereby 
expressly  exempted  from  the  operation  of  section 
six  hundred  and  seventy-two  of  the  Political  Code. 
Sec.  8.  This  act  shall  take  effect  immediately. 
[Approved  February  28,  1893;  Stats.  1893,  p.  57.] 


An  Act  to  authorize  Robert  C.  Ball  to  sue  the 
State  of  California. 

Section  1.  Robert  C.  Ball  is  hereby  authorized 
to  commence  and  prosecute  a  civil  action  in  any 
court  of  competent  .1m-isdiction,  against  the  State 
of  California,  for  the  value  of  his  services  as 
architect  and  superintendent  of  the  branch  State 
prison  at  Folsom. 

Sec.  2.  Summons  in  said  action  shall  be  served 
by  delivering  a  copy  thereof,  attached  to  a  copy 
of  the  complaint,  to  the  attorney  general  of  the 
State,  and  it  shall  be  the  duty  of  the  attorney 
general  to  defend  said  action. 

Sec.  3.  In  beginning  this  action  it  is  expressly 
understood  that  said  Robert  C.  Ball  shall  file  with 
the  court,  where  such  is  first  to  be  tried,  a  bond 
in  sufficient  sum  to  cover  the  cost  of  court,  such  as 
may  be  deemed  sufficient,  and  approved  by  said 
(rourt,  and  an  additional  bond  in  the  sum  of  five 
lumdred  dollars,  to  be  paid  as  fees  for  counsel  em- 
ployed by  the  State  in  the  defense  of  the  case; 
but  in  the  event  the  judgment  is  in  favor  of  Rob- 
ert C.  Bali,  he  shall  in  no  manner  be  responsible, 
and  his  bondsmen  shall  be  released  from  all  lia- 
bility. 

Sec.  4.  Either  party  to  said  action  may  appeal 
to  the  Supreme  Court  from  any  judgment  or  ap- 
pealable order  of  said   Superior  Court  therein. 


APPENDIX,  871 

Sec.  5.  If  linal  judgment  shall  be  rendered 
against  the  State,  it  shall  be  the  duty  of  the  con- 
troller of  the  State,  upon  presentation  of  a  certi- 
fied copy  of  said  judgment,  to  draw  his  warrant 
in  favor  of  said  Robert  C.  Ball  for  the  amount  of 
said  judgment. 

Sec.  6.  And  it  shall  be  the  duty  of  the  treasurer 
to  pay  the  sum  out  of  any  moneys  not  otherwise 
appropriated. 

8ec.  7.  This  act  shall  talvc  effect  from  and  after 
its  passage.  [Approved  March  24,  1891;  Stats. 
1891,  p.  194.] 


An  Act  to  enable  the  Coulterville  and  Yosemite 
Turnpil^;e  Company,  a  corporation,  to  sue  the 
State  of  California  for  the  Iosb  and  damage 
suffered  and  sustained  by  said  corporation  by 
the  construction  of  a  road  by  the  Yosemite 
Turnpike  Road  Company,  under  and  by  virtue 
of  an  act  of  the  Legislature  of  the  State  of 
California,  entitled,  "An  Act  granting  the  right 
of  way  to  the  Yosemite  TurnpilvC  Road  Com- 
pany over  the  Y'osemite  Grant,"  approved  Feb- 
ruary 17,  1874,  and  for  the  relief  of  said  Coul- 
terville and  Yosemite  Turnpike  Company. 

§  1,  2,  3.    Preamble. 

§  4.    Authorized  to  sue  State. 

§  5.    Bond  for  costs  and  attorney  fees. 

§  6.    Appeal— duty  of  Governor. 

Section  1.  Whereas,  the  commissioners  to  man- 
age the  Yosemite  Valley  and  the  Mariposa  Big 
Tree  Grove,  by  their  resolution  adopted  the  six- 
teenth day  of  July,  eighteen  hundred  and  seventy- 
two,  together  with  a  written  agreement  dated  the 
thirteenth  day  of  August,  eighteen  hundred  and 
seventy-two,  agreed  with  tlie  Coulterville  and  Yo- 
semite Turnpike  Company,  a  cori">oration,  that  said 


872  APPENDIX. 

Coulterville  and  Yosemite  Turnpike  Company 
isliouid  liave  tlie  exclusive  riglit  to  construct  and 
maintain  a  wagon  road  on  tlie  nortlierly  or  Coul- 
terville side  of  tlie  :\ierced  river,  from  a  point  at 
or  near  Crane  Flat,  past  the  line  of  survey  of  tliat 
reservation  from  tlie  public  lands  of  tlie  United 
States,  known  as  the  iosemite  Grant,  to  and  up- 
on the  level  of  the  Yosemite  N'alley,  and  should 
have  the  exclusive  right  to  maintain  a  road  on 
.•>aid  side  of  the  Merced  liiver,  and  collect  tolls 
tnereon  for  a  term  of  ten  yeai's  from  the  comple- 
tion thereof;  and  the  said  road,  in  pursuance  of 
such  resolution  and  agreement,  was  completed  on 
the  eighteenth  day  of  June,  eighteen  hundred  and 
seventy-four,  and  said  commissioners,  on  the  third 
uay  of  July,  eighteen  hundred  and  seventy-four, 
accepted  the  same  as  completed. 

iSec.  '1.  And  whereas,  in  the  year  eighteen  hun- 
dred and  seventy-four  the  legislature  of  the  State 
of  California  passed  an  act  entitled  "An  act  grant- 
ing the  right  of  way  to  the  Yosemite  Turnpike 
Koad  Company  to  construct  a  toll  road  over  the 
Yosemite  Grant,"  approved  February  seventeenth, 
eighteen  hundred  and  seventy-four  and  under  and 
by  virtue  of  said  act  said  Yosemite  Turnpike  Road 
Company  constructed  and  completed  a  road  on  the 
northerly  side  of  the  Merced  river,  from  neai* 
Gentry's  Station,  to  a  point  on  the  level  of  the 
Yosemite  Valley,  near  El  Capitan,  which  said 
road  was  completed  in  the  month  of  July,  eigh- 
teen hundred  and  seventy-four. 

Sec.  3.  And  whereas,  the  last  mentioned  road 
was  on  the  northerly,  or  Coulterville,  side  of  the 
Merced  river,  and  conllicted  with  the  exclusive 
privilege  so  granted  to  said  Coulterville  and  Yo- 
semite Turnpike  Company,  and  by  reason  of  the 
fonstruction  and  completion  of  the  same  the  wag- 
on road  completed  by  said  Coulterville  and  Y'o- 
semite  Turnpike  Company  then  became  little  used 


APPENDIX.  873 

and  said  Coultervillc  and  Yosemito  Turnpike  Com- 
pany claims  to  have  suffered  great  loss  and  dam- 
age, by  reason  of  the  loss  of  tolls  on  its  said  road, 
and  the  depreciation  in  value  of  said  road. 

Sec.  4.  The  said  Coulterville  and  Yosemite 
Turnpilie  Company  is  hereby  authorized  to  com- 
mence and  prosecute  a  civil  action,  in  the  super- 
ior court  of  the  county  of  Sacramento,  against 
the  State  of  California,  to  recover  such  amount,  if 
any,  as  it  may  in  law  or  equity  be  entitled  to  re- 
ceive as  compensation  for  the  injuries  aforesaid. 
Summons  in  said  action  shall  be  issued,  and  to- 
gether with  a  copy  of  the  complaint  served  upon 
the  Attorney  General  of  the  State,  and  it  shall  be 
his  duty  to  defend  said  action,  and  to  interpose 
thereto  such  defenses,  legal  or  equitable,  as  may 
exist,  and  which  a  private  person  under  like  cir- 
cumstances might  interpose.  In  beginning  this  ac- 
tion, it  is  expressly  understood  that  said  Coulter- 
ville and  Yosemite  Turnpike  Company  shall  file 
with  the  superior  court  of  the  county  of  Sacra- 
mento a  bond  in  sufficient  sum  to  cover  the  costs 
of  court,  such  as  may  be  deemed  sufficient  and 
approved  by  said  court,  and  an  additional  bond  in 
the  sum  of  five  hundred  dollars,  to  be  paid  as  fees 
for  covmsel  employed  by  the  State  in  the  defense 
of  the  case:  but  in  the  event  the  .nidgment  is  in 
favor  of  said  Coulterville  and  Y^osemite  Turnpike 
Company,  it  shall  in  no  manner  be  responsible, 
and  its  bondsmen  shall  be  released  from  all  liabil- 
ity. 

Sec.  5.  If,  in  said  action,  a  .I'ndgment  shall  be 
entered  in  favor  of  the  plaintiff  therein,  it  shall  be 
the  duty  of  the  Attorney  General  to  take  an  ap- 
peal therefrom  to  the  supreme  court  of  the  State. 
and  if  such  judgment  shall  be  finally  affirmed  by 
said  supreme  court,  then  the  plaintiff  in  said  ac- 
tion shall  file  a  certified  copy  of  said  judgment 
with  the  Governor  of  the  State;  and  it  is  herebv 


874  APPENDIX. 

made  the  duty  of  the  Governor,  by  message,  to 
inform  the  next  legislature  of  the  existence  of 
said  judgment  against  the  State. 

Sec.  0.  This  act  shall  take  effect  from  and  after 
its  passage.  [Approved  March  31,  1891;  Stats. 
1891,  p.  275.] 


STATUTE    OF   LIMITATIONS. 
An  Act  respecting  the  Limitations  of  Actions, 

Bankers'  certificates  of  deposit. 

Section  1.  Where  bankers'  certificates  of  de- 
posit have  heretofore  been  given  to  any  party 
since  deceased,  and  not  found  until  after  admin- 
istration of  his  or  her  estate,  an  action  may  be 
maintained  thereon  by  the  heirs  or  legal  repre- 
sentatives at  any  time  within  six  months  after 
such  finding. 

Sec.  2.  This  act  shall  take  effect  from  and  after 
its  passage.  [Approved  March  11,  1872;  1871-2, 
319.] 


APPENDIX.  875 


An  Act  supplementary  to  an  Act  entitled  an  Act 
defining-  tlie  Time  for  commencing  Civil  Ac- 
tions, passed  April  twenty-second,  eighteen 
hundred  and  fifty. 

No  limitation  to  action  for  money  deposited  with 
bankers. 

Section  1.  There  shall  be  no  limitation  upon  the 
right  to  maintain  an  action  for  the  recovery  of 
money  or  other  property  deposited  with  any  bank, 
banker,  trust  company,  or  savings  and  loan  so- 
ciety. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict 
herewith,  so  far  as  the  same  are  in  conflict,  are 
hereby  repealed. 

Sec.  3.  This  act  shall  take  effect  from  and  af- 
ter its  passage.  [Approved  March  16,  1872;  1871- 
2,  401.1 


INDEX. 


ABATE:\rENT.  action  not  by  death.  §  385. 
action,  not  by  transfer,   §  385. 
of  nuisance  bv  action.  §  731. 
ABBREVIATIONS     AND     NUMBERS,     use    of, 

§  186. 
ABSENCE,  pnblication,  service  by,  §  413. 
waiver  of  jnry.  is.  §  031 . 

witness,  of,  deposition  may  be  talien.  §  2020. 
witness,  of,  postponement  of  trial,  §  595. 
from  state,  effect  on  statute  of  limitations.   § 
351. 

See  Nonresidence. 
ABSENTEE,    probate    proceedings,     appointment 

of  attorney  for.  §  1718. 
ABSTRACT,  costs  for.  when  allowed,  §  799. 
how  certified.  §800. 
in  partition  suits.  §§  799,  800. 
ACCIDENT,  new  trial  on  o-round  of,  §  657. 
ACCOUNT,     executors'    and     administrators'     §§ 
1417.  1612-16.38.  16-52.  1653.  1735-1739. 
particulars,    further  of,    §  454. 
plendinu".   items  of,    §  454. 
public  administrator,  of,   §§  1735-1739. 
reference  of,   §  639. 

reference  of,  on  .iuduinent  by  default,  §  585. 
copy  of,  may  be  demanded,  §  454. 
further  account  may  be  ordered.  §  454. 
to  l>e  rendered  by  persons  trusted  with  estate. 

§  1461. 
to  be  rendered  by  surviving  partner,  §  1585. 
of  n'oint  guardian  may  be  allowed,  §  1775. 
ACCRUED  RIO  ITT.  not  affected  by  code,  §  8. 
ACKNOWLEDGEMENT,  judges  who  may  take.   § 
179. 
Code  Civ.   Pioc— 74. 


878  INDEX. 

ACTION.    See  various  titles,  e.  g.  Civil  Actions; 
Partition,  Quieting  Title,  etc. 
abatement  of,   §  385. 
alienation,  not  to  prejudice,  §  747. 
arbitration  revoking,  submission  to,  action  for, 

§  1290. 
aiTest,  against  bail '  on,  §  490. 

attachment,  on  undertaking  in,  §  552. 

causes  of,  joinder  of,  §  427. 

civil,  defined,   §§  25,  30. 

code  did  not  affect  pending,  §  8. 

commencement  of,  §S  405-416. 

commencement  of  (limitations),   §  350. 

consolidation,    §  1048. 

death,   bv  personal  representatives,   for   caus- 
ing, §377. 

defined,   §  22. 

dismissal  of,  §  581. 

division,  civil  and  criminal,  §  24. 

executors,  etc.,  power  to  bring,  §§  1581-1584. 

fire  commissioners,  not  to  be  sued,  §  390. 

fire  departments,  how  sued,  §  390. 

form  of,  but  one,  §  307. 

guardian,  power  to  bring,  §  1769. 

justices'  courts,  in,   §§  832-925. 

justices'  courts,  code  provisions  applicable  to, 
§925. 

liens,  several  may  be  joined  in  one,  §  1196. 

limitation  of,   §§  312-363. 

limitation  of,  real  property,  §§  315-328. 

limitation  of,  other  than  real  property,  §§  335- 
348. 

parent,  by,  for  injury,  etc.,  to  child,  §  376. 

parties,    §§.367-389. 

parties,  plaintiff  and  defendant,   §  308. 

pending,  deemed,  when,  §  1049. 

pending,  ground  for    demurrer    to  complaint, 
§430. 

place  of  trial,  §§  392-400. 

pleading  in,   §§  420-476. 

postponement  of  trial,   §  595. 

provisional  remedies,  on  undertaking  in,  §  552. 

quiet  title,  §§.738-748. 

receiver,  action  by,  §  568. 

register,   §  1052. 


INDEX.  879 

ACTION— Contiuuod. 

seduction,  §  375. 

ships,   against,    §§813-827. 

successive,  on  same  contract,  §  1047. 

summons,  etc.,  §§  405-410. 

title  of,  §426. 

trial  of,  §§  600-645. 

what  it.  is,  §  22. 
ACTS  of  foreign  executive,  as  evidence,  §  1918. 

of  municipal  corporation,  as  evidence,  §  1918. 

declaration  of  party,  as  evidence,  §  1870. 
ADJUUIiNMENT.    See     Continuance,     Postpone- 
ment. 

absence  of  n^di^e,  §§  139,  140. 

contesting  county  elections,  in,  §  1121. 

holiday,  by  reason  of,  §  1.S5. 

jury,  absence  of  durinii-,  §  017. 

jury,  discharge  by  adjournment  of  term,  §  617. 

supVeme  court,  of,  §  48. 

suiierior  court,  of,   §  74. 
ADJUTANT-GENERAL.    See  National  Guard. 
ADMINISTRATOR.    See     Estates    of     Deceased 

Persons;  Executors  and  Administrator^s. 
ADMISSION,  attorney  to  practice,  §§  275-280. 

postponement,  may  be  avoided  by,  §  595. 

service  of  summons  of.  §  41.5. 

b.y  failure  to  verify  answer,  §  446. 

of  genuineness  of  instrument  by  failure  to  ver- 
ify answer,    §  447. 

of   genuineness   of   instrument   by   plaintiff,    § 

448. 
when   genuineness   of   instrument   not   admit- 
ted, §'449. 
ADVERSE  CLAIM,  personal  property,  to,  action 
to  determine,  §  1050. 

real  property,  to,  action  to  determine,  §  738. 
ADVERSE  PARTY  in  intervention,   §  385. 

on  appeal,  §  938. 

to  produce  writing,   §  1938. 
ADVERSE    POSSESSION,    judgment    under,    §§ 
322,  333. 

landlord  and  tenant,  effect  of  relation  of  on, 
§326. 

occupation,  actual,  under  claim  of  title,  §  324. 

written  instrument,  under,  §§  322,  323. 

written  instrument,   not  under,   §  325. 


8S0  INDEX. 

AFFIDAA'li'S.   definition  of,   §  2003. 
may  be  used  for  Avliat,  S  2009. 
before  whom  to  be  talven,  §§  179.  259.  2012. 
before  whom  taken  within  the  United  States, 

§  2013. 
before    wliom    taken    in   foreij:::n     conntrv   or 

state,   §  2014. 
certificate  required  to  foreign  atlidjivit,  §  2015. 
certificate  required  in  another  state,  §  2013. 
defective  heading,  §  104G. 
for  arrest  of  judgment  debtor,   §  715. 
for  attachment,  what  to  state,   §  538. 
for  a  contempt,  §  1211. 
for  an  inj unction,   §  527. 
for  judgment  by  confession,   §  1133. 
for  mandate,  requisites  of,  §  1086. 
for  prohibition.  §  1103. 
for  order  to  allow  amendment,  §  473. 
for  order  of  arrest,   §  481. 
for  order  of  arrest  in  justices'  court,  §  862. 
for   order   to   examine   imprisoned   witness,    § 

1996. 
for  postponement  of  action,  §  595. 
for  postponement   in  justices'   courts,    §  876. 
for  publication  of  summons,  §  412. 
for  publication  in  partition  suits,  §  757. 
for  review,  when  and  by  whom  made.  §  1069. 
for  submitting  controversy  without  action,    S 

1138. 
in  proceedings  to  contest  election,  §  1115. 
in  proceedings  to  contest  administrator's  bond, 

§  1394. 
in  proceedings  against  joint  debtors,  §  991. 
in  proceedings  to  try  right  of  otfice,  §  804. 
in  proceedings  to  perpetuate  testimony,  §  2084 
in  replevin  where  delivery  is  claimed,  §  510. 
juror  may  make,  as  to  misconduct  of  jury,  § 

657. 
may  be  taken  by  judicial  officers,  §  179. 
of   concealment   or   materialitv    of   witness,    § 

1988. 
of  costs  and  disbursements.  §  1033. 
of  justification  of  bail,  §495. 
of  mariners'  claim  of  wages,  §  825. 
of  notice  of  filing  award,   §  1286. 
of  plaintiff  denying   execution   of   instrument 

§448. 


INDEX.  H81 

AFFI I )  AVI  TS— Continued. 

of  printer,   evidence  of  publication,    §  2010. 

of  property  due  judsment  debtor,  §  717. 

of  sole  trader,   §  1818. 

of  service  and  mailiun-  of  notices,  §  1306. 

of  return  of  summons,  §  410.  « 

of  service  of  summons,  §  415. 

of  sureties  on  bonds,  §  1U.j7. 

of  publication,  what  to  specify,  §  2010. 

of  publication,  where  filed,  §  2011. 

of  title  to  property  claimed  by  third  party,  § 
519. 

of  witness  for  exoneration  from  contempt.  § 
2069. 

on  application  for  writ  of  review,  §  1069. 

on  application  for  injunction,  §§  526,  527. 

on  application  to  pei-petuate,  testimony,  §  2084. 

on  claim  and  delivery,   §  510. 

on  motion  for  continuance,  §  595. 

on  motion  to  dissolve  injunction,  §  532. 

on  motion  for  a  new  trial,  when  to  be  filed  and 
served,   §  658. 

on  objections  to  appointment  of  referee,  §  642. 

on  submission  of  controversy,  §  1138. 

prejudice  of  judjie.  affidavits  to,  §  170. 

service  of  copy,  in  arrest,  §484. 

service  of,  in  replevin,  i^  512. 

service  of,  in  injunction,  §  527. 

to  nccompanv  summons  against  judgment 
debtor,  §  991. 

fo  ho  filed  bv  sheriff  in  replevin,  §  .520. 

to  bill  of  costs,  §  1033. 

to  compel  judgment  debtor  to  answer,  §  715. 

to  copy  of  assignment  to  redemptioner,  §  705. 

to  discharge  attachment,   §  556. 

to  oppose  discharge  of  attacliment,  §  557. 

to  oppose  dissolution  of  injunction,  §  532. 

to  petition  to  obtain  further  security  from  ad- 
ministrator, §  1397. 

to  show  misconduct  of  jury,  §  658. 

to  vacate  order  of  arrest.  §  503. 

verifying  pleadings,  §  446. 

when  affiant  is  nonresident,  §  446. 

when  affiant  is  a  corporation,  §  446. 

when  state  is  a  party,  not  required,  §  446. 

when  valid,  though  defective,   §  1046. 

when  may  be  used,  §  2009. 


882  INDEX. 

AFFINITY.    See  Consanguinity. 

judge,  of  to  party  disqualifies  judge,  §  170. 

juror,  of,  to  party  disqualifies  juror,  §  602. 

referee,  of,  to  party,  disqualifies  referee,  §  641. 
AFFIRMATION,  form  of,   §2097. 

oath  includes,  §  17. 
AGENT,  declarations  of,  §  1870,  sub.  5. 

for  absentees  on  distribution,   §§  1691-1695. 

appointment  of,  to  take  property  on  distribu- 
tion, §  1691. 

to  furnish  bond  in  such  case,  §  1692. 

liability  of,  on  bonds,  §  1695. 

to  render  annual  account  to  probate  court,  § 
1694. 
ALAMEDA  COUNTY,  act  relative  to  executions 
in  justices'  court  in  Alameda  repealed,  p.  861. 

act  providing  for  superior  judge,  p.  801. 
ALIEN,  effect  of  alienage  on  limitation  of  actions, 

§354. 
ALIENATION,   after  suit  commenced,   effect  of, 

in  real  actions,  §§  740,  747. 
ALLEGATIONS.    See  Answers;  Complaint. 

affirmative,  by  whom  must  be  proved,  §  1869. 

denials  of,  how  made,  §  437. 

if  not  controverted,  deemed  admitted,  §  462. 

in  pleadings  against  joint  debtors,  §  993. 

sham  and  irrelevant  to  be  stricken  out,  §  453. 

material,  what  are,  §  463. 

material  only  need  be  proved,  §  1867. 

negative,  when  must  be  proved,   §  1869. 

to  be  liberally  construed,  §  452. 

redundant,  striking  out,  §  453. 

when  deemed  admitted,  §  462. 

when  deemed  controverted,  §  462. 

burden  of  proof  of,  §§  1869,  1981 

variance,   §§  469-471. 

in  particular  actions.    See  particular  title. 
ALLOWANCE  for  support  of  family  of  decedent, 
§§  1464.  1467. 

how  to  be  paid,  §  1467. 
ALTERATION,   writing,    must   be   accounted   for 

by  party  producing,   §  1982. 
AMBIGUITY,  demurrer,  ground  for,  complaint,  § 
430. 

demurrer,  ground  for,  answer,  §  444. 
AMENDMENT,  answer  before,  effect  of,  §472. 


INDEX.  883 

AMENDMENT— Continued. 

complaint  of,  filinj?  and  serving,  §§  432,  472. 

demurrer  after,  of  course,  §  472. 

demurrer  before,  effect  of,  §  472. 

errors  and  defects  to  be  disregarded,   §  475. 

fictitious  name,  where  real  name  discovered, 
§  474. 

filing,  §§432,  472. 

justices'  court,  pleadings  in,   §  859. 

mistake,  in  any  respect,  §  473. 

party,  striliing  out  name  of,  §  473. 

power  of,  general,  §  128. 

process,   crenerally.  of,  §  128. 

serving,  §§  432,  472. 

supplemental  pleadings,   §  464. 

variance,   §§  469-471. 

by  correcting  name  of  party.  §  473. 

terms  may  be  imposed,  §  473. 

to  pleadings  or  proceedings  generally,   §  47.3. 

to  pleadings  in  justices'  courts,  §  859. 
AMICABLE    ACTIONS,     submission    of    contro- 
versy. §§  1138-1140. 
ANOTHER  ACTION  PENDING,  ground  for  de- 
murrer.  §  430. 
ANSWER,  allegations  in,  what  are  material,  §  463. 

amendment  of,  §  472. 

appearance,  answer  is,  §  1014. 

attorney,  of,  to  accusation,  §§  294-296. 

complaint,  amended,  to,  §  432. 

conditions  precedent,   pleading,   §  457. 

construction  of,  §  452. 

counterclaim,    §§  4.38-440. 

counterclaim,  when  omission  to  set  up  waives, 
§439. 

cross-complaint,  to,  §  442. 

cross-demands  compensate  each  other,   §  440. 

default  of,  judgment  for,  §  585. 

defective  heading  to.  §  1((40. 

defenses  not  I'aised  by,  waived,   §§  4.34,  439. 

demurrer  at  same  time  with  answer,  §  431. 

demurrer,  effect  on,  §  472. 

demurrer,  matters  the  subject  of.  not  appear- 
ing on  face  of  complaint,  mav  be  taken  by, 
§  433. 

demurrer  to,  §§  443,  444. 


884  INDEX. 

ANSWER— Continued. 

denials,  allegation  not  denied,  admitted,  §  642. 

disclaimer,   §  7.39. 

errors  and  defects  in,  §  475. 

escheat  estate,  answer  to  information,  §  1271. 

escheated  estate,  attorney-general's  answer  to 

claim   for,    §  1272. 
estoppel,    §§1908,   1962. 
extension  of  time  for  filing,   §§  473,  1054. 
filed,  must  be,   §465. 
generally,  §  437. 
gold  coin,  etc.,  §  667. 
husband  and  wife,   §§370,  371. 
improvements,  setting  up  value  of,  §  741. 
information  or  belief,  if  defendant  has  no,   § 

437. 
injunction  after,   §  528. 
intervention  to  complaint  on,   §  387. 
irrelevant,   strilving  out,    §  453. 
joint     debtors,    answer    in    proceedings   after 

judgment,   §  992. 
judgment,  pleading,  §  456. 
justices'  court,  in,  §§  855,  856,  860. 
libel,  in  action  for,  §  461. 
limitations,  statute  of,  pleading,  §  458. 
lost,  how  supplied,  §  1045. 

mandate,  to  petition  for  writ  of,  §§  1089,  1094. 
mortgage,   §  726. 

new  matter  deemed  controverted,   §  462. 
partition  of  real  estate,  in,  §  758. 
probate  in  contest  on,  §  1312. 
quiet  title,  in  action  to,  §  739. 
redundant  matter,   striking  out,    §  453. 
separately  stated,  defenses  must  be.  §  441. 
served,  must  be,  §  465. 
several  defenses,  may  contain,  §  441. 
sham,  may  be  striclien  out,  §  453. 
ships,  etc.,  in  actions  against,  §  821. 
signature  to,  §  446. 
slander,  in  action  for,  §  461. 
statute,  private,  pleading,  §  459. 
strilving  out,    §  453. 
supplemental,  §  464. 
time  for  filing,   §407. 
time  for  filing,  enlarging,  §§  473,  10.54. 
verification,  §  446. 


i 


INDEX.  .^8.-. 

AXSWEK -Continued. 

verified  complaint,  failiu-e  to  yerifv  answer  to, 
§  440. 

waiver  of  objections  not  taken  by,  §  434. 

waiver  of  snmmons  by,  ;^  40C). 

written     instrument    "where     complaint     sets 
forth,  §§447-449. 

written  instrument,  settinu"  out  in.  §§  448,  449. 
A^PPEALS.    See  Review. 

.u-enerally,  §§  936-980. 
Parties,  who  may  take  and  in  what  proceedings. 

aggrieved  party  may  take,  §  938. 

appellant,  Avho  may  be.  §  938. 

parties,   how  designated,   §  938. 

suggestion,  death  or  other  disability  on.  §  385. 

executor,  appeals  by,  §  9G5. 

guardian's  appeal.  §  9(35. 

appeal  from  award,  §  1289. 

from  what  may  be  taken,  §  939. 

from  order  granting  or  refusing  new  trial,   § 
939. 

from  judgment  on  controversy  without  action, 
§  1140. 

from  judgment  for  deliverv  of  documents,   § 
943. 

from     judgment  for  executing  conveyance,   § 
944.  , 

from   judgment,   for   sale   or   delivery   of   real 
property.   §  945. 

from  judgment,  what  may  be  reviewed,  §  956. 

orders  out    of    court  without    notice,  how  re- 
viewed, §  956. 

supreme  court,  appeals  by  executors,  adminis- 
trators, and  guardians.  §§  965,  966. 

supreme  court,  appeals  to,  generally,  §963. 

supreme  court,  to,   from   cases  from  justices' 
court,   §964. 

supreme  court's  power  on.  §  53. 

insolvency  proceedings,  appeal  may  be  taken, 

from  what  orders  in,  p.  855.  §  71.  Stat. 

appeals   from   judgments   or  orders   in   courts 

before  .Tan.  1.  1880,  p.  787,  Stat. 

settlement   of  trustee's   account,    right   of  ap- 
peal, §  1701. 

corporation,   voluntary  dissolution  of,    §  1233. 

controversy  without  action,  from  judgment  on, 
§1140. 


886  INDEX. 

APPEALS— Continued. 
Parties— arbitration,  appeal  from  decision  on  mo- 
tion to  set  aside  or  modify  award,  §  1280. 

eminent  domain,   §  1257. 
Time  of  tailing. 

evidence,  decision  or  verdict  not  supported  by, 
§  939. 

in  probate,  matters  to  be  talven  within  sixty 
days,  §  1715. 

time  for  tailing,  generally,  §  939. 
Talking  of— Notice  and  undertaking. 

mode  of  taking,    §  940. 

insolvency  proceedings,  appeals  in,  how  taken, 
p.  855,  §  71,  Stat. 

settlement  of  trustee's  account,  appeal  from, 
how  taken,  §  1701. 

notice  of,   §  940. 

justification   of   sureties,   proceedings   thereon, 
§  948. 

mode  of  taking,  §  940. 

undertaking  on,  §§  940-949. 

undertaking  on,  administrator  appellant,  §  965. 

undertaking    on,    executor,   appellant,     §§  946, 
971. 

undertaking  on,  deposit  in  lieu  of.  §§  940,  941, 
949. 

undertaking  on,  documents,  'delivery  of  judg- 
ment for,  §  943. 

undertaking     on,     execution     of     conveyance, 
judgment  directing,   §  944. 

undertaking  on,  generally,  §§  941,  n.,  949. 

undertaking  on,  justification  of  sureties,  §948. 

undertaking  on,  money  judgment.   §  942. 

undertaking  on  real  property,  sale  or  posses- 
sion, judgment  directing,   §  945. 

undertaking    on,    several   documents    may    be 
in,  §  947.  ^ 

undertaking    on,    sureties    on,    paying   money 
judgment  after  appeal,  §  1059, 

undertaking  on,  trustee  appellant,  §  946. 

sureties    on,    subrogation    on    paying    money 
judgment  after  appeal,  §  1059. 

bond  on  appeal  from  order  directing  alias  writ 
of  possession,  §  1210. 

insolvencw  proceedings,  bond  on  appeal  in.  p. 
855,  §  71. 


INDEX.  887 

APPEALS— Continued. 
Exceptions  and   records, 
record  on  appeal  from  judgment,  §  950. 
record  on  appeal,  from  judgment,   on  appeal, 

§951. 
record  on  appeal,  from  order  granting  or  re- 
fusing new  trial,  S  952. 
record  on  appeal,  from  order  other  than  order 

granting  or  refusing  new  trial,  §  951. 
transcript,  clerk's  certificate,  etc.,   §  953. 
certificate  of  clerli,  as  to  correctness  of  tran- 
script,  etc.,   §  953. 
exceptions   in   court   below,   necessity   for,    §§ 
64(3,    956. 
Effect  of. 
appeal  in,  insolvency,  stay  of  proceedings,  p. 

855,  §71. 
attachment,  effect  on,  §  946, 
stay  of  proceedings,  when  effected,  §§  942,  946. 
Dismissal, 
appeal,  dismissal  of,  effect  of,  §  955. 
dismissal  of,  for  not  furnishing  papers,  §  954. 
dismissal,  when  and  when  not  allowed,  §  954. 
Hearing, 
review  on,   §§936-939. 
probate  proceedings,   appeals   in   to   be  given 

preference,  §  57. 
orders,    interlocutory,    reviewable    on    appeal 

from  judgment,  §  956. 
judgment,  review  of,  on,  §§  936-939. 
immaterial  error  to  be  disregarded,  §  475. 
Judgments,  costs,  remittitur, 
power  of  supreme  court  on,  §  53. 
affirmance  on,  §    53. 
settlement  of  trustee's  account,  conclusiveness 

of  decree  after  affirmance  on  appeal,  §  1701. 
judgment,  reversal  on,  §  957. 
reversal  not  to  be  granted  for  error  not  chang- 
ing result,  §  475. 
appointment  of  executor,  reversal,  effect,  §  966. 
appointment  of  administrator  or  guardian,  re- 
versal, §  966. 
guardianship,   appointment  reversed,   effect,   § 

966. 
administrator,  appointment  reversed,  effect,   § 
966. 


8->7  INDEX, 

An 'KAL.S—roiJ  tinned. 
Judgments— moditicatiou  ol"  .jud.unicnt,   I'emevlj.i 

powers  of  court  on,  §§  53,  057. 
reversal    of    judgment,    remedial    powers    of, 

court  on,   §  957. 
judgment,  modifying  on,  §  957. 
costs  on,  §  1027. 
costs  on,  how  claimed,  §  1034, 
when  appellate  court  may  order  payment  of 

costs,   §  1720. 
remittitur,  §  958. 
Appeals  to  superior  court, 
superior  court,  from,  generally.  §  963. 
superior  court,  to,  generally,  §  974. 
superior  court,  how  taken,   §  974. 
superior  court,  on  questions  of  law.  statement, 

§  975. 
superior  court,  on  questions  of  law  and  fact. 

no  statement.  §  976. 
superior  court,  statement  on,  §§  975,  976. 
superior  court,  stay  of  proceedings.  §  979, 
superior  court,  transmission  of  case,  §  977. 
superior  court,  trial  de  novo,  §  980. 
superior  court,  unnecessarv  delav  in  bringini: 

cause  to  trial.   §  980. 
superior  court,  undertaking  on,   §  978. 
superior  court,  undertaking,  deposit  in  lieu  of, 

§  926, 
APPEAT^AXCE,  accusation  against  attorney,   to, 

§  293. 
answer  is,  §  1014. 
<lofondant.   hy,    §  1014. 
demurrer  is,  §  1014, 
findinirs  waived  bv  nonappearance  at  trial.   § 

6.34, 
aenerallv,   §  1014. 
husband"  and  wife.  §§370,  371. 
jury  waived  by  nonappearance  at  trial,  §631. 
notice,  written,  is,  §  1014. 
summons,  time  for,  to  be  inserted  in,  §  407. 
time  for.   §  407. 
tiMnl.  at,   faibn-e  1o  appear  waives  findings.    § 

6.34. 
trial,  at,  failure  to  appear  waives  jury,  §631. 
waives  service,  §§  406.  416. 
effect  of,  where  summons  not  issued  or  served. 

§581. 


INDEX.  889 

APl'KAKANCE— Coiitinued. 

failnre  of,  in  justices'  courts,  §  884. 

of  parties,  is  waiver  of  notice,  §  1306. 
:\.PPLICAT10NS,  repeated,  for  same  order,  pro- 
hibited, §§  182,  183. 
APPRAISEMENT,  estates  of    deceased    persons, 
§§  im,  1444  et  seq.,  1476  et  seq. 

of  ward's  estate,  §  1773. 

See  Appraisers. 
APPRAISERS,  appointment  at  cliambers,  §  IGC. 

appointment  by  superior  court,  §  1444. 

appointment  includes  what,  §  1445. 

appointment  on  ward's  estate,  §  1773. 

duty  of,  §  1445. 

duty  of,  as  to  liomestead,  §  1476. 

inventorj'  to  be  signed  by,  §  1449. 

of  after-discovered  property,   §  1451. 

report  of,  on  liomestead,  §  1477. 

report,  liow  confirmed,  §  1478. 

to  be  sworn,  §  1445. 

who  are,  and  by  whom  appointed,  §  1444. 
APPRENTICES,  countv  court  jurisdiction,   <?  85. 
ARBITRATION,    adjournments,    §  1284. 

appeal.  §  1289. 

award,  §  1286. 

aAvard.   modifying,   §  1288. 

award,  vacating,   §  1287. 

superior  court,  iurisdiction  in,  §  1283. 

generally.   $§  1281-1290. 

hearing,  §  1284. 

modification,  grounds  for,  §  1288. 

oath  of  arbitrators.  §  1285. 

oaths,  arbitrators,  power  to  administer,  §  12S4. 

powers  of  arbitrators,   §  1284. 

real  property,  title  cannot  be  submitted  to,   § 
1281. 

revocation,  grounds  for.  §  1287. 

setting  aside,  §  1287. 

subjects  of,  §  1281. 

submission,  mailing  order  of  court,   S  1283. 

submission,  revocation  of.  damages  on.  §  1290. 

submission,  writing,  must  be  in,  §  1282. 

three  arbitrators  must  meet,  but  two  mav  act, 
S§1053,   1285. 
ARGU:MENT,  trial,  order  of.   §  607. 

Code   Civ.    Proc  — 75 


«90  INDEX. 


ARREST  AND  BAIL.  See  Bail;  Discharge  from 
Imprisonment. 

affidavits  for  arrest.  §  481. 

bail  by  defendant,  §§    486,  487. 

bail  by  defendant,  charged  if  they  do  not  sur- 
render defendant  within  ten  days  after  judg- 
ment, §489. 

bail  by  defendant,  deposit  in  lieu  of,  §  497. 

bail  of  defendant,  exonerated  by  death  of  de- 
fendant, §  491. 

bail  by  defendant,  justification,   §§  493-495. 

bail  by  defendant,  new  undertaking  to  be 
given  if  other  bail  taken.  §  493. 

bail  by  defendant,  proceeding  against,  §  490. 

bail  by  defendant,  qualifications  of,  §§  494, 
1057. 

bail  by  defendant,  reducing,  §§  503,  504. 

bail  by  defendant,  sufficiency  of  certificate  of 
judge  or  clerk  of,  §  496. 

bail  by  defendant,  sufficient  discharges  sheriff, 
§496. 

causes  for  arrest,  §  479. 

contempt,  arrest  for,  §  1215. 

death  of  defendant  exonerates  bail,  §  491. 

deposit  in  lieu  of  bail,  §  497. 

deposit,  bail  may  be  substituted  for,  §  499. 

deposit,  judgment  to  be  applied  to  satisfy, 
§500. 

deposit,  reduction  of,  §  497. 

deposit,  sheriff  to  give  defendant  certificate 
of,   §497. 

deposits,  sheriff  to  pay  into  court,  §  498. 

escape,  §  501. 

escape,  sheriff  may  discharge  himself  by  giv- 
ing bail,  §  501. 

execution,   §  682, 

forcible  entry,  in,  §  1168. 

generally,   §§  478-504. 

justices'  court,  in,  §§  861-865. 

limitation  of  power  to  arrest,  §  478. 

order  for  arrest,  §§  480-485. 

order  for  arrest,  execution  of,  §  485. 

order  for  arrest,   form  of,   §  483. 

order  for  arrest,  service  of,  §  484. 

order  for  arrest,  vacating,  §§503,  504. 


INDEX.  891 

ARREST  AND  BAIL— Contiuued. 

order  for  airest,  when  may  be  made,  §  483. 
sheriff,  judgment  acrainst  as  bail,  §  502. 
sheriff,  paying  over  money,  §  498. 
sheriff,  return,  etc..   §  492. 
surrender  of  defendant  by  bail,  §§  488-489. 
undertaking  on  arrest,  §  482. 
vacating  arrest,  §  503. 

for  refusal  to  obey   citation  in  probate  mat- 
ters,   §  1460. 
for    refusal    of    administrator    to    answer    on 

oath,    §  1440. 
liability  of  officer  for  arrest  of  witness,  when. 

§  2069. 
of  public  administrator,  for  refusal  to  submit 

to  examination,  §  1734. 
of  witness  for  refusal  to  testify,  §  1994. 
of  witness,  when  void,   §  2068. 
witness,  when  exonerated  from,  §  2067. 
witness,    when    entitled    to    discharge    from, 

§  2070. 
release  from,  exempts  from  rearrest.  §  1158. 
ASSAULT      AND      BATTERY,     jurisdiction     of 

justices'  court,  §  115. 
ASSESSMENT,  value  of  property  taken  for  pub- 
lic use,  §  1248. 
ASSIGNMENT,  thing  in  action,  of,  §§368,  885. 
of  accounts,  etc.,  §368. 
not  to  prejudice  right  to  set-off,  §  368. 
not  to  bar  counter-claim  in  answer,  §  439. 
redemptioner  to  produce  copy  of,  §  705. 
ASSIGNEE  mav  sue.  §  368. 

ASSIGNMENTS      FOR      THE      BENEFIT      OP 
CREDITORS,  corporation  acting  as  assignee, 

powers  and  duties,  §  1348. 
insolvency.    See  Insolvency. 
ASSISTANCE,  writ  of,  §  682. 

bond  on  appeal  from  order  directing  alias  writ 
of  possession,  §  1210. 
ASSOCIATION,  sued,  how,  §  388. 
ATTACHMENT,       administrator      or      executor, 
against,    §§  1440,    1627. 
affidavit  for,  §  538. 
contempt,  for,  §§  1209-1222. 
corporation,    §  542. 


892  INDEX. 

ATTACHMENT— Continued, 
cnstocly,  §  542. 
debts  and  credits,   §  542. 
deposit  on,    to    be    applied    in    satisfaction  of 

judgment,   §  550. 
discliarge,  affidavits  upon  motion  for,  §  557. 
discliarge.  application  to,  §§  554-558. 
discharge,   certified  copy  of  order  of  may  be 

recorded,  §  559. 
discbarge,   .iudgment   for   defendant,    §  553. 
discbarge,  undertaking  on,  §  554. 
dissolution  of,  §§  554-558. 
embezzlement    bv    executor    or    administrator, 

§  1440. 
examination    of    debtor    and    third    persons, 

and  order  thereon.   §  545. 
execution  of,  §§  541-543. 
executor  or  administrator.   §§  1440,   1627. 
garnisliment.    See  Garnishee, 
generally,  §§  537-559. 
insolvency  dissolves  attachment  made  within 

one  month,  p.  831,  §  21. 
insolvency,   costs  in  proceedings  dissolved  by 

allowance  of,  p.  854.  §  69. 
inventory  by  sheriff,  §  546. 
issue  of,  not  to  be  before  summons,  §  537. 
judgment  for  defendant,  effect,  §  553. 
judgment,  satisfying  out  of  attached  property 

and  payment   of  balance    to    defendant,     §§ 

550,  551. 
justices'   court,    in,    §§  80G-869. 
levy  on,  §  542. 

lien   of,   merges   in  judgment  lien,   §  671. 
property,  debts,  etc..  slieriff  may  collect,  §  547. 
property,  liable  to,  §S  541-543. 
property,   personal,    §  542. 
property,  real,  S  542. 
property,  receiver,  in  hands  of,  §  564. 
property,  sale  of,  §§  547,  548. 
proiH'rty.   satisfaction  of  judgment,   to  be  ap- 
plied  in,   §  550. 
property,  third  person  claiming,  §  549. 
property,  tliird  person's  hands,  in.  §5j  543,  544. 
return,   sheriff's   §§  .54(;.   5.59. 
sale.  §§  547.  54.S. 


INDEX.  893 

ATTACHMENT— Coutiuiied. 
service  on   trarnishee,   §  542. 

several  writs  may  be  issued,  §  540. 

sheriff,  collection  and  payment  over  by.  §  550. 

sheriff,  return  by.  §§  540.  559. 

ships,   etc.,   against,    §§  813-827. 

stocks,  shares,  etc.,  §  542. 

undertaking  on,  form  of,  §§  539,  540. 

undertaking  on,  .iustitication,  etc.,  §  539. 

undertaking  on,  liability  of  sureties,  §  555. 

undertaking  on,  release  of  attachment,  prose- 
cuting, §§  540,  554,  555. 

undertaking  on,  release  of  attachment,   §  552. 

undertaking  on,  successful  defendant  entitled 

to,  §  553. 
will,  person  not  producing,  §  1302. 

witness,  to  compel  attendance  of,  §§  177,  1993. 

writ  of  and  requirements  thereof,  §  540. 
ATTENDANCE,  witness,  compelling,   §§177,1985- 

1997. 
ATTORNEY  AT  LAW,  absence  of,  postponement 
of  trial,  §595. 

absentee,  probate  court  may  appoint  attorney 
to  represent,    §  1718. 

accusation  against,  answer,  §§  294-296. 

accusation  against,  appearance,  §  293. 

accusation  against,  citation,  §  292. 

accusation    against,    demurrer.    §  295. 

accusation  against,  judgment,  §  299. 

accusation  against,  reference,   §  298. 

accusation  against,  trial,  §  297. 

accusation  against,  verification  of,  §  291. 

accusation  against  must  be  in  AA'ritiug,  §  290. 

admission  to  practice,  how  effected,  §  275. 

admission  of,  from  other  State,  §  279. 

admission  of,  county  courts,   §  276. 

admission  of,  district  courts,  §  276. 

admission  of,  supreme  court,  §  277. 

answer  to  accusation,  how  made,  §§  294-296. 

appointment  on  contest    of    probate    of    Avill, 
§  1307. 

attendance  foi*  examination,  personal,  §  27!). 

authority  of,   §§  283.  284. 

authority  of,  retraxit,  to  enter,  §  .581. 

certificates  of  admission  of,  5  277. 


ATTORNEY  AT  LAW— Continued. 

change  of,  §§  284,  285.  1718. 

compensation  of,   §  1021. 

consents  by,  §  283. 

contempt  of  court  by,  §  1209. 

conviction  of  crime,  effect  on  license,  §  288. 

conviction,    cleric   to   transmit  copy   of,   to   su- 
preme court,   §  288. 

county  court,   admission  by,   §  276. 

death  of,  §  286. 

declaration  of  intention.  §  275. 

duties  of,  §  282. 

examination  for  admission,  §§  276-279. 

fees,  §  1021. 

who  may  be  admitted  generally,  §  275.  j 

judge  may  not  act  as,  §§  180,  171.  ; 

jury  duty,  exempt  from,  §  200. 

justices,  courts,  in,  §  842. 

license,  §  277. 

license,  practicing  without,  §  281. 

may  instruct  sheriff  what  to  attach,  §  543. 

may  require  sheriff  to  take  property  in  replev- 
in, §511. 

oath  of,  on  admission,  §  278. 

papers  to  be  served  on,  §  1015. 

plaintiffs',  name  of  must  be  indorsed  on  sum- 
mons, §  407. 

pleadings,  signature  to,  §  446. 

power  of,  §  283. 

privileged  communications,  §  1881. 

probate  court,  appointment  by,  §§  1307,  1718. 

qualifications,   §§  275,  276. 

receiver,  attorney  for  party  must  not  be,  §  566. 

removal  of,  S§  286-299. 

roll,  §280. 

roll,  striking  off,   §§286-299. 

satisfaction,  power  to  enter,  §§  283,  675. 

service  of  papers,  must  be  on,  §  1015. 

state,  from  another,  admission  of,  §  279. 

stipulations  by,  §  283. 

summons,  plaintiff's  attorney's  names  must  be 
indorsed  on,   §  407. 

suspension  of,  §§  286-299. 

witness,  privileged  communications,  §  1881. 
ATTOIINEY-(;i:nkkal,    escheated    estates,    du- 
ties,  §§  12G9-1272. 


INDEX.  895 

ATTOKNEY-GENERAL— Continiiefl 
usurpation  of  offices,  duties,  §  803. 
verify  pleadinijs,  need  not,  §  446. 
AUCTIONS.    See  Bids. 
AWARD,    arbitration,    §§  1281-1290. 
BAIL,  arrest  and  bail,  §§486-504. 

contempt,  in  proceedinjjs  for,  §  1215. 

defendant  discllar.^•ed  on  driving,  §  486. 

deposit  made  instead  of,  §  497. 

in  contempts,    §  1215. 

.iustification  of,  §§493-495. 

may  be  jriven  by  defendant  on  arrest,  §  487. 

may  surrender  defendant,  §  488. 

may  arrest  defendant,   §  489. 

may  be  exonerated,  §  491. 

may  be  examined  as  to  qualifications,  §  495. 

qualifications  of,  §  494. 

substituting  for  deposit,   §  499. 

to  be  given  bv  usurper  of  office  of  franchise, 

§  804. 
Avhen  charged  on  undertaking,  §  489. 
when  finally  charged,  §  490. 
when  sheriff  liable  as,  §  501. 
on  supplementary  proceeding,   §  715. 
See  Arrest  and  Bail. 
BAILIFF,  supreme  court,  of,   §§  265,266. 
BALL,  ROBERT  C.  act    authorizing    Robert  C. 

Ball  to  sue  State,  p.  870,  Stat. 
BANKRUPTCY.    See  Insolvency. 
BANKS,  lost  certificates  of  deposit,  act  authoriz- 
ing suits  on  after    they    have    been    found, 
p.  874. 
no  limitation  to  action  for     money     deposited 

with  banker,  p.  875,  Stat, 
dissolution,  unclaimed    deposits    or    dividends, 

payments  into  treasury,  §  1234. 
dissolution,   application  for.   statement  of  un- 
claimed  deposits   or   dividends,    §  1234. 
BATTERY^:    See  Assault  and  Battery. 
BENP]F1CIARY',  joinder  of,  as  plaintiff  unneces- 
sary, §369. 
BERKELEY\  act  creating  justices'  court  in  Ber- 
keley   and   prescribing  powers   and   duties,   p. 
858. 
BID  at  administration  sale,  how  I'eceived,  §  1549, 


X96  INDEX. 

RID-  Coutiniietl. 

what  amount  to  be  bid,  §  1550. 
at  execution  sale,   §  694. 

probate  court  sale,  private,  bow  bids  received 
at,  §§  1549-1550. 
BIDDER,    refusal  to   pay   bid   at   execution    sale, 
§§    695-697. 
extent  of  liability,  §  697. 
when  officer  may  refuse  bid,  §  696. 
recovery  from,   §  696. 
BILL  OF  COSTS,  veritication  and  filing,  §  1033. 
BILL    OF    EXCHANGE,    assignments,  law  as  to 
does  not  affect  negotiable,  §  368. 
notice  of  dishonor,  effect  of,  §  1865. 
parties  liable  on,  may  be  sued  together,  §  383. 
BILL    OF    PARTICULARS,    further,    obtaining, 
§  454. 
justice's   court,   complaint  mav  be  copy  of.    § 
853. 

pleaded,  need  not  be,  §  454. 
BLANKS,  justice  must  not  issue  process  (except 

subpoena)  without  filling  up,  §  920. 
BOARDS,  PUBLIC,  exercise  of  poAver  by  maior- 

ity,  §15. 
BOATS,  actions  against,  §§  813-827. 
liability  of,  liens  for,  §  813. 
actions  may  be  brought,  §  814. 
complaint,  what  to  designate,   §  815. 
summons,  how  served,  §  816. 
attachment  may  issue,  §  817. 
issuance  of  writ,  §  818. 
writ,  how  directed,  i^  819. 
execution  of  writ,  §  820. 
appearance  and  defense,  §  821. 
proceedings,  how  conducted,  §  822. 
discharge  of  attachment,  terms  of,  §  823. 
sale  under  judgment,  §  824. 
proceeds,  how  disposed  of,  §  824. 
claims  for  wages  preferred,  §  825. 
claims,  how  enforced,   §  825. 
claims,  hoAV  proved,  §  826. 
notice  of  sale,  §  827. 

See  Ships. 
BOND.    See  Appeals;  Bail;  Sureties;  Undertaking. 


INDEX.  .  897 

BOND— Continned. 

of     administrator,     form     and     requisites    of, 
§  1388. 

additional,    wlien    required.    $  i:?SO. 

separate  bonds  required.  §  1391. 

not  void  on  first  recovery.    §  1392. 

sureties   must   justify.    §  1393. 

additionnl  security.  §  1394. 

vlien  right  ceases,  §  1395. 

Avlien  may  be  dispensed  with,  §  1396. 

(^f  administrator,  with  will  annexed,  §  1426. 

of  purchaser  at  administrator's  sale,  when  re- 
quired.  §  1567. 

action  on  administrator's  bond,  §  1586. 

to  executors  by  distributees  of  estate,  §  1661. 

suit  upon  distributees'  bond,  §  1662. 

of    agent    appointed    for    absent    distri))utees, 
§  1692. 

of    public    administrator    on    special  letters,  § 
1727. 

of  guardian,  conditions  of,  §  1754. 

of  testamentary   guardian,    §  1758. 

of  guardian  on  sale  of  property,  <j  1788. 

new  bond  of  guardian,  wlien  required,  §  1803. 

must  be  filed,   action   on.    §  1804. 

provisions  of  Code  to  apply  to,  §  1809. 

court  commissioners  may  take.  §  2.59. 

qualifications  of  sureties.  §  1057. 

corporation  acting  as  surety,  p.  788,  Stat. 

corporation  formed  to  act  as  surety,  examina- 
tion into  by  insurance  commissioner,  §  10.56. 

corporation  to  act  as  surety,  deficiencv  of  as- 
sets, §  1056. 

corporations,   right  to  act  as  sole  sureties  on 
bond.  §  1056. 
BOOKS.    See  Writings. 

containing  laAvs  ]n-esumed  to  be  correct.  §  1900. 

entries  in  official,   evidence.   §  1920. 

of  science,  art.  etc..  as  evidence.  §  1936. 

of  records  of  Avills  to  be  kept,  §  1318. 

.iudgment  book  to  be  kept.   §  668. 

.iudgment  to  be     entered     in  amicable  actions, 
§  1132. 

inspection    may    be    ordered  and  copy  given,  S 
1000. 


898.  INDEX. 

BOUNDARIES,  description  in  deeds,  §  2077. 
BREACH   OF   PEACE,   jurisdiction  in  cases   of, 

§115. 
BUILDINGS,    proceedings    to    enforce    liens    on, 
§§  1183-1199. 
.^4iat  public,   exempt  from  execution,   §  690, 
See  Public  Buildings. 
BUILDING  CONTRACTS.  See  J^Fechanics'  Liens. 
BURDEN  OF  PROOF,  who  has,   §§  1981,  1982. 
CALENDAR,  generally,  §  593. 

restoring  causes   dropped  from,    §  593. 
supreme  court,  §  129  n. 
CAPACITY,  want  of,  ground  for  demurrer,  §  430. 
CASE,    AGREED,  controversy  without  action,  §§ 

1138-1140. 
CAUSE  OF  ACTION,  complaint  not  stating  facts 
sufficient  to  constitute,  objection,  not  waiv- 
ed by  not  demurring.  §  434. 
joinder  of,  §  427. 
misjoinder,  demurrer  for,  §  430. 
place  of  trial,  may  determine,  §  392. 
summons,  must  contain  statement  of,  §  407. 
CERTIFICATE,  appeal,   certificate  to  transcript, 
§953. 
evidence,  certificate  of  copy  judicial  record  of 

foreign   country   for,    §§  1906,    1907. 
evidence,    certificate    of    copy  document  for, 

generally,  §§  1919,  1922-1924. 
evidence,  certificate  of  copy  judicial  record  of 

this  state  or  United  States  for,  §  1905. 
evidence,  certificate  of  written  law  or  public 

writing  of  any   country   for,    §  1901. 
execution,  personal  property  capable  of  man- 
ual delivery,  certificate  of  sale  of,  §  698. 
execution,  personal    property  not    capable    of 
manual  delivery,  certificate  of  sale  of,§  699. 
execution,  real  property,  certificate  of  sale  of, 

§700. 
location  of,  primary  evidence  of  ownership  of 

land,    §1925. 
purchase   of,   primary   evidence   of   ownership 

of  land,  §  1925. 
of  proof  of  lost  will,  §  1340. 
of  proof,  to  be  attached  to  will,  §  1317. 
of  service  of  summons,    §  415. 


INDEX.  89J 

CEKTI FIC  ATE— Continued. 

act  validating  certificates  issued  by  courts  be- 
fore provided  with  seals,  p.  864. 
CERTIFICATES  OF  DEPOSIT,  lost,  act  author- 
izing suits  on  after  they  have  been  foimd, 
p.  874. 
CERTIORARI,   generally,    §§  1067-1077. 

supreme  court  may  issue,  §§  51,  54. 
CESTUI  QUE  TRUST.    See  Trustee. 

joinder    of    as    plaintiff,  when    not    necessary, 
§369. 
CHALLENGES    TO    JURORS,    cause,     for,    and 
trial  of,  §§  602,  603. 

justices'   courts,  in,   §  885. 

peremptory,  §  610. 
CHAMBERS,    power    at,  superior    judge,   §§  166, 
176. 

power  at,  probate  judge,  §§  176,  1305,  1808. 

power  at,  supreme  court  judge,  §  165. 

provision  for  judges,   §  144. 

writs  which  may  issue  at,  §  1108. 
CHANGE,  name,  of,  §§  1275-1278. 

parties,  of,  §  385. 

place  of  trial,   §§  397-399. 

place  of  trial,  justices'  court,  §  383. 
CHARACTER.    See  Evidence;   Witness. 

of  witness  or  party,  evidence  of,  §  2053. 
CHARGE  TO    JURY,  further    instructions,  how 
given,  §  614. 

generally,   §§  607,  608. 
CHIEF    JUSTICE    OF    SUPREME    COURT,  ap- 
portioning business,  §  44. 

election  and  term,  §  40. 

in  case  of  absence,  who  is,  §  46. 

may  convene  court,   §  45. 
CHOSE  IN  ACTION,  assignment  of,  §368. 
CIRCUMSTANTIAL   EVIDENCE.  See  Evidence, 

§  1858. 
CITATION,  generally,  §§  1707-1711. 

to  attorney  to  answer  accusation,  §  292. 

to  heirs  resident  in  county,  §  1304. 

to  executor  named  in  will,  §  1304. 

to  parties  interested  in  estate,  §  1328. 

on  contest  of  grant  of  letters,  §  1384. 

on  justification  of  sureties  in  probate,  §  1394. 

on  application  for  new  sureties,   §§  1398-1402. 


900  INDEX. 

CITATION— Contiuued. 

on  application  for  release  of  sureties,  §  1403. 
service     on     absconding     administrator,     etc., 

§  1439. 
service  of  summons  on,  §411. 
security  not  required  in  actions  by,  §  1058. 
to  person    in    charge  of    decedent's    property, 

§§  1459-1461. 
to  minor,  bv  superior  judge,  §  1749. 
to  render  an  exhibit,  §§  1623-1625. 
to  render  an  account,  §  1628. 
time  of  service  and  return,   §  1711. 
when  issued,  §  1708. 
how  served,  §§  1709.  1710. 
CITY,  summons,  how  served  on,  §  411. 

need  not  give  security  in  actions,  §  1058. 
See  Municipal  Corporations. 
CITY    COURT,  net    abolishing    and    transferring 

business,  p.  867. 
CIVIL  ACTIONS.    See  Limitations, 
arise  from  obligation  or  injury,  §  25. 
when  and  how  prosecuted,  §  30. 
by  whom  prosecuted,  §  30. 
pending   rights   not   affected   by   Code,    §  8. 
for  real  property,  limitation  of,  §§  315-328. 
may  be  consolidated  on  lien,  §  1196. 
how  commenced.  S  405. 
when  to  be  commenced,  §  312. 
when  deemed  commenced,  §  350. 
limitation  of,   against  corporation,   §  3.59. 
limitation,  where  cause  arises  in  other  state, 

§  361. 
how  commenced  in  police  courts,  §  929. 
questions  involved  in.  may  be  submitted  to  ar- 
bitration, §  128L 

See  Actions. 
CLAIM    AND    UELIYP]RY,   actors,   both   parties 
are,  §  667. 
allidavit  for,    §  510. 
aftidavit    not   truly     stating   value.    otHcer    not 

bound  by.  §  473. 
answer,   claim   must   l)e   made  before.    §  509. 
concealed  property.  §  517. 
costs.   §  1022. 

execution,   §§  682,  684-687. 
generally,  §§  509-520. 


INDEX.  901 

CLAIM  AND  DELIVERY— CoutiuiUHl. 

judgment  iu.   §  667. 
justices'  courts,  §  870. 

limitations,  statute  of,  applicable  to,  §  338. 

property,  claim  by  third  person,   §  519. 

property,   sheriff  to  keep,  how,   §  518. 

redelivery  to  defendant,  §  514. 
requisition  to  sheriff  to  take  property,  §  511. 

sheriff's  return.  §  520. 

sureties,  exception  to,  §  513. 

sureties,   justification  of  defendants,   §  515. 

sureties,  qualification,  §  516. 

title,  effect  of  judgment  on.  §  1908. 

undertali;ing'  for  plaintiff,  §  512. 

value   not  "truly   stated   in   affidavit   does   not 
bind  officer,  §  473. 

verdict  on,  §  627. 
CLAIMS,  by  third  person  in  replevin,  §  519. 

by  third  person  in  attachment,  §  549. 

by  third  person  in  execution,  §  689. 

of  lienholder,  when  to  be  filed,   §  1187. 

for  wages  of  mariner,  preferred,  §  825. 

adverse,  for  personal  property,  §  1050. 

adverse,  for  real  property,  §  738. 

against  estates  of  deceased.  §  1493. 
CLER(;YMAN,  privileged  communication.   §  1881. 
GLERK,  affidavits,  can  take.  §  2012. 

calendar,  to  make  up,  §  593. 

docket,  judgment,  to  keep,  §§  671-673. 

generally,  §  262. 
judgment  to  enter.  §  664. 

judgment-book,  to  keep.  §  668. 

judgment-docket,  to  keep,   §§  671-673. 

judgment-roll,  to  make  up,  §  670. 

practice  law,  forbidden  to,   §  171. 

register  of  actions,  to  keep.  §  1052. 

testimony,  to  talve  down,  §  1051. 

must  indorse  on  complaint,  wliat,  §  406. 

duty  of,  in  contested  elections,  §  1118. 

duty  of,  on  confession  of  judgment,   §  1134. 

what  to  transmit    on  verdict    on    mandate,   § 
1093. 
of  tribunal    to    return   writ  of    review  with 
transcript,  §  1070. 

to  invest  proceeds  on  i)artiti()n  sales,   §  789. 

Code  Civ.   Froo.  — 7'".. 


902  INDEX. 

CLERK— Continued. 

duty  of,  on  investment,  §  791. 

to  attest  decree  in  partition,  §  1684. 
In  probate  matters. 

to  file  and  record  certificate  of  proof,  §  1318. 

to  file  petition  for  letters,  §  1371. 

to  post  notices,  §  1373. 

to  issue  citation,  §  1384. 

to  record  letters,  etc.,  §  1387. 

to  sign  and  seal  letters,  §  1356. 

to  issue  letters,  §  1412. 

to  give  transcript  and  certificate,  §  1429. 

when  to  issue  subpoenas  and  citations,  §§  1707, 
1708. 

to  enter  claims  on  register,  §  1497. 

to  sign  citation,  §  1707. 
CLOSED  DOORS,  trials  with,  §  125. 
CLOUD  ON  TITLE,  §  738. 

CODE  OF  CIVIL  PROCEDURE,  construction  of, 
§4. 

construction   of.   derogation  of   common  law, 
§4. 

construction    of    previous  laws,  where    provi- 
sions same  as,  §  5. 

division  into  parts,  §  1. 

effect,  January  1,  1873,  §  2. 

effect,  generally,  §§2,  4. 

interpretation  clause,  §  17. 

limitations,  statute  of,  effect  on,  §  9. 

parts,  divided  into  four,   §  1. 

pending  actions,   not  affected  by,   §  8. 

repealing  eft'ect,  §  18. 

retroactive  effect,  §§  3,  8. 
CODES,   construction  of.  generally,   §  4. 

when  talves  effect,   §  2. 
CODICIL,  will  includes,  §  17. 

COMMENCEMENT    OP    ACTION,  actions,    how 
commenced,  §  405. 

summons,  issuance  of,  §  407. 

alias  summons,  when  to  issue,  §  408. 

notice  to  be  filed  in  real  actions,  §  409. 

in  police  courts,  §  929. 

insolvency    proceedings,    when    deemed    com- 
menced, p.  853,  §  65. 
COMMISSION,  acts  creating  supreme  court  com- 
mission, p.  790  et  seq. 


INDEX.  903 

COMMISSION   TO   TAKE   TESTIMONY,    within 
state,  §§  2021,  20.31,  2038. 

without  state,  §§  2024.  2028. 
COMMISSIONS,    executor's    and    administrators, 

§  1618. 
COMMITTEE.    See  Guardian. 
C0M;M0N  law,  code  not  to  be  construed  as  in 

derogation  of,   §  4. 
COMPENSATION,  attorney's,  regulated  by  agree- 
ment, §  1021. 

executor's,  etc.,  §§  1616,  1618. 

to  tenants  in  partition,  sales  to  be  made,  §  778. 

to  be  fixed  by  courts  in  such  cases,  §  779. 

to  owner,  on  condemnation  of  land,   §  1249. 

on  unequal  partition  of  land,  §  792. 

of  appraisers  in  probate,  §  1444. 

of  attorneys,  regulated  by  agreement,  §  1021. 

of  referee  in  probate,  §§  1508,  1636. 

of  executor  by  will,  §  1616. 

renunciation  of  same,  §  1616. 

further  allowance,  §  1618. 

of  agent  of  absentee  on  partition,    §  1692. 

of  guardians,    §  1776. 
COMPLAINT,  as  a  pleading,  §  422. 

first  pleading  in  action,  §  425. 

allegations,  admitted  if  not  denied,  §  462. 

allegations,  material,  what  are,  §  463. 

answer  to,   §  437. 

answer  to,  failure  to  verify,  §  446. 

assignment  of  chose  in  action,  etc.,  §  368. 

commencement  of  action  by  filing,  §§  350,  405. 

contents  of,  §  426. 

defective  heading,   §  1046. 

denials,  general  or  specific,   §  437.      * 

fictitious  name,  suing  by,   §  474. 

husband  and  wife,  §S  370,  371. 

parent  for  injury  or  death  of  child,  §§  376,  377. 

gold  coin,  etc.,   §  667. 

guardian,  as  party,  §§  376,  377. 

intervention,  on,  §  387. 

irrelevant  matter  may  be  stricken  out,  §  453. 

judgment,  how  pleaded,  §  456. 

in  justices'  courts,  §  853. 

hniitations,  §§  312-363. 

lis  pendens,  §  409. 


^04  INDEX. 

COMPTiAI  NT— Continued, 
lost,  bow  supplied,  §  1045. 
objections  to,  bow  waived,  §  434. 
objections  to.  wben  made  by  answer.  ^  4.33. 
particulars  of  claim.  §  454. 
description  of  real  estate.  §  455. 
redundant  and  sbam  matter,  §  4.53. 
statutes,  bow  pleaded,  §  459. 
stock  sold  for  delinquent  assessment,   §  341. 
asninst  surety.  §  10.50. 
amendments  to  be  filed  and  served,  §§  432.  472, 

473. 
amendments,  of  course,  §  472. 
causes  of  action  whicb  may  be  joined.  §  427. 
causes  of    action  must  be    separatelv    stated, 

§  427. 
conditions  precedent,  bow  pleaded  in.  §  457. 
demand  for  relief.  §  42G. 
demurrer  to.  §§430-434. 
for  injunction,   must  be  veritied.   §  527. 
in  justices'   courts,  what  to  contain.   §  8-53. 
indorsement  of  clerk  to  be  made  on.  §  406. 
in  actions  for  seduction,  §§  374.  375. 
in  action  for  a  nuisance,  §  731. 
in  forcible  entry  and  detainer.  §§  1159-1173. 
in   actions   against   steamers   or  boats.    §§  813- 

815. 
in  actions  for  usurpation  of  offlce.   §  804. 
in  actions  for  partition.  §§  7.53.  755,  7G1.  763. 
in  actions  for  causin.u'  death  or  injury,  §  377. 
in  actions  to  remove  cloud  on  title.  §§  738.  10.50. 
in  foreclosure  suits.    §  726. 
in  actions  for  slander,   s  460. 
in    proceedings    for    condemnation    of     land, 

§  1242. 
on    application    for   voluntary    dissolution     of 

corporation,  §  1228. 
on  usurpation  of  office  or  franchise.  §§  803.  804. 
pleading  performance   of  condition   precedent, 

§  457. 
part  of  judgment  roll.  §  670. 
signature  to,  §  446. 
clerk  to  indorse.   4j  406. 
service  to  be  made  of  copy  of.  §  410. 
statement  of  cause  of  action.  Iioav  made.  §  426. 


INDEX.  905 

COMI'LAINT— Continued. 

statement  in  proceedings  to  contest  elections, 
§  1115. 

suggestion  of  death,  §  385. 

supplemental,  when  may  be  made.   §  464. 

to  be  amended  in  certain  cases,   §  1173. 

what  to  contain.  S  426. 
COMPROMISE,  offer  to.  admits  nothing,  §  2078. 

generally,   §§  977,  2074.   2076,  2078. 

justice's  court,  in,  §  895. 

objections  to  tender  must  be  specified  or  are 
waived,  §  2076. 

receipt  may  be  demanded.  §  2075. 
COMPUTATION  OF   TIME,   generally,   §  12. 

time  of  performance  of  act  may  be  extended, 
§  1054. 
CONCEALED,   property,   possession   of,   how   de- 
manded, §  517. 

defendant,  service,  how  made  on,  §  412. 

witness,  subpoena,  how  served  on,   §  1988. 
CONCLUSIVE  EVIDENCE,  defined,  §1837. 

how  restricted,  §  1978. 
CONDEMNATION  OF  LAND.    See  Eminent  Do- 
main. 
CONDITION      PRECEDENT,      performance     of, 

how  pleaded,  §  457. 
CONFESSION    OF    JUDGMENT,    may    be    made 

for  debt  due  or  for  contingent  liability,  §  1132, 

statement  on,   §  1133. 

filing  statement  and  entering  judgment,  §  1134, 

in  justices'  court,  how  made,  §  1135. 

jurisdiction  governed  by  amount  due,  §  1132. 
CONFESSIONS,  evidence  of,  §  1870. 
CONSANGUINITY.    See  Affinity. 

judge  disqualified  by,  §  170. 

juror  disqualified  l)y,  §  ()02. 

referee  disqualified  by,  §«)41. 
CONSENT,    attorney   by,    §  283  u. 

jurisdiction,   cannot  give,   §  283  n. 
CONSII)i]RATION,    recital    of,    not    conclusive, 

§  1962. 
CONSOLIDATION    OF    ACTIONS,    eminent    do- 

kmain.    §1243. 
generally,   §  1048. 
liens,  on  mechanics',   §  1196. 


906  INDEX. 

CONSTITUTION  defined,  §  1897. 
CONSTRTTCTION,  code,  of  this,  §§  2-18. 
CONTEMPT,    judicial    officers    may    punish    for, 
§  178. 

second  application  for  order  deemed  a,  §  183. 

generally,  §§  1209-1222. 

of  jnror  for  failure  to  attend,  §  238. 

compelling;  obedience   c^enerally,   and   preserv- 
ins:  order,  §§  128.  177. 

disobedience  of  ^Yitness,  §§  128,  177,  1991-1994. 

AA'^hat  acts  or  omissions  are,  §  1209. 

re-entry  on  propertly  after  eviction,  §  1210. 

in  presence  of  court,  how  punished,  §  1211. 

in  absence  of  court,  what  necessary  to  show, 
§  1211. 

warrant  may  issue  on  notice  to  show  cause, 
§  1212. 

what  acts  or  omissions  are,  §  1209. 

re-entry  on  property  after  eviction,  §  1210. 

in  and  out  of  presence  of  court,   proceedings 
on,  §1211. 

warrant  of  attachment  may  issue,   §  1212. 

bail  may  be  given  by  party  arrested  for,  §  1213. 

duty  of  sheriff  on  arrest.  §  1214. 

bail  bond,  form  and  conditions  of,   §  1215. 

officer    to    return    warrant    and    undertaliing, 
§  1216. 

hearing  on  charge  preferred,  §  1217. 

judgment  and  penalty  for.  §  1218. 

omissions,  how  punished,  §  1219. 

failure  to  appear  at  hearing,  proceedings  there- 
on, §  1220. 

illness    sufficient    excuse    for     nonappearance, 
§  1221. 

judcrments  and  orders   in  cases  of,   are  final, 
§  1222. 

failure  to  attend  as  juror,  §  238. 

disobedience  to  mandate.   S  1097. 

disobedience  by  witness,  §§  1991-1994. 

refusal  to  obey  citation  in  probate  court  is  a, 
§§  1400,  1461. 

in  justices'  courts,  acts  and  omissions  consti- 
tuting, §906. 

in  presence  of  justice,  how  punished,   §  907. 


INDEX.  907 

CONTEMPT- Contimiecl. 

not  in  presence  of  justice,  proceedins^s  on,  §  908. 
punishment,    measure    of,    in     justices'    court, 

§909. 
conviction  for,  to  be  entered  in  justices'  doc- 

Ivet,  §  910. 
provisions  of  Code  as  to  service  of  process  not 

to  apply,  §  1016. 
disobedience  to  mandamus,   §  1097. 
provisions  relatins:  to  are  applicable  in  insol- 

vencv  proceedings,   p.  S54,    §  08. 
CONTESTING    ELECTIONS,  who    may  contest, 

.a:rounds  of.  §  1111. 
elections,    when     annulled     for    irregularity, 

§  1112. 
when  not  annulled  for  malconduct,  §  1113. 
illegal    votes,  when    not    to    vitiate    elections, 

§  1114. 
proceedings  on  contest,   §  1115. 
statement  of  cause  of  contest,  §  1116. 
list  of    illegal  votes,   when    to  be    furnished, 

§  1116. 
want    of    form    of    statement,  not    to  vitiate, 

§  HIT. 
special  term  of  court  for  trial  of,   §  1118. 
citation  to  issue  to  respondent,  §  1119. 
witnesses,  attendance,  how  enforced,  §  1120. 
powers  of  court  in  proceedings  on,   §  1121. 
adjournment  may  be   ordered,    §  1121. 
rules  to  govern,  on  trial,  §  1122. 
decision    on    trial,    what    court    may    declare, 

§  112.3. 
costs  in  proceedings,  who  liable  for,  §  1125. 
appeal  lies  from  decision  on,  §  1126. 
appeal,  when    to    be    taken  within    ten    days, 

§  1127. 
CONTESTING  PROBATE.    See  Probate  of  Will. 
CONTINUANCE,  for  absence  of  testimony,  what 

required,  §  595. 
in  proceedings  for  mandate,  when  may  be  or- 
dered, §  1090. 
not  allowed  on  amended  complaint  in  forcible 
for  nonreturn  of  commission  to  talie  testimony, 

§  2027. 

entry,  §  1173. 


908  INDEX. 

CONTINUANCE— CoDtiniied. 

costs  as  a  condition  for,  in  discretion  of  court, 
§  1029. 

in  forcible  entry  and  detainer,    §  1173. 

in  mandamus,  §  1090. 

in  justices'  court,  when  may  be  ordered,  §  874. 

on  consent  of  parties,  §  875. 

on  application  of  either  party,  what  must  be 
shown,  §  876. 

affidavit  when  required,  §  870. 

not  for  more  than  ten  days'  exception,  under- 
taking, §  877. 

See  Ad.iournment;    Postponement. 
CONTRACTORS,  liens  which  may  be  secured  by, 
§§  1183-1199. 

See  Lien,  Enforcement  of. 
CONTRACTS,  conditions  precedent  in.  how  plead- 
ed, §457. 

express    or   implied,    may   be    united    in   com- 
plaint, §  427. 

attachment,  when  may    issue    in    actions  on, 
§  537. 

when   defendant  may  be   arrested   in   actions 
on,  §479. 

trial  by  jury,  how  waived  in  actions  on,  §  631. 

judgment  by  default  may  be  taken  in  action 
on,  §  .585. 

judgments  in  gold  coin,  when  may  be  talven 
on,  §  667. 

of  purchase,  by  decedent,  §  1565. 

enforcement  of,  §  1597. 

decedent,  purchase  by,  §§  1565-1568. 
CONTRIBUTION,  joint  debtor  paying  execution, 
right  to,    §  709. 
.  probate,  payment  of  debts,  for,  §  1564^ 

sureties,  riiihts  to,  §§  10.50,  1059. 
CONTROVERSY  WITHOUT  ACTION,  SUBMIT- 
TING, generally,  §§  1138-1140. 
CONVEYANCE,     acknowledgment,    judges     wlio 
may  take,  §  179. 

mortgage,  when  deemed,  §  744. 

slierifUs  deed,  §  703. 

undi>r  administrator's  sale,  §  1555. 

of  land   by   executors   and   administrators,    §§ 
1597-1607. 


INDEX.  900 

€OXVP:YA^XE— Continued. 

and  sale  of  lands  to  pay  decedent's  debts,  §§ 

1536-1576. 
CONVICTION  OF  CRIME,  attorney,  effect  on  li- 
cense, §288. 
COPIES,  amendments,  copies  to  be  served,  §  432. 
record,  copy  requires  seal,  §  152. 
writing-,  demanding  copy  of,  §  1000. 
writing,  evidence  when  original  accounted  for, 

etc..    §  18.55. 
writing,  pleadings,   effect  of  setting  forth  in, 

§§  447-449. 
CORONER,    §  262  n. 

CORPORATIONS,  "person"  includes,  §  17. 
receiver,   when   appointed.    §§  564,   .565. 
service  of  summons  on,  §  411. 
veritication  of  pleading  by,  §  446. 
acting  as  executor,  guardian,  trustee,  receiver, 

or  assignee  and  powers  and  duties,  §  1348. 
acting    as    executor,    trustee,  etc.,  liability  of 

officers,  §1348. 
foreign,  service  of  summons  by  publication  in 

actions  against.  §  749. 
suretv.  corporation  to  act  as,  deficiency  of  as- 
sets, §  1056. 
suretv,   corporations  right  to   become  sole   on 

bond,  §§  1056,  1057. 
surety,  corporations  formed  to  act  as  sole,  ex- 

amininu-   into    bv   insurance    commissioners, 

§10.56." 
insolvent    act,  provisions  of    apply    to.  -p.  841, 

§40. 
insolvency,  petition  in,  by,  p.  841,  §  40. 
insolvency  of,  proceedings  on.  p.  841,  §  40. 
insolvent,    discharge    not    grnnted    to,    p.  841, 

§  40. 
insolvencv,   penalties    for  fraudulent    convev- 

ances,  etc.,  p.  841,  §  40. 
dissolution,  voluntary.  §§  1227-1233. 
dissolution,     voluntary,     appeal     from    order. 

§  1233. 
dissolution,     voluntary,    application     for,     §§ 

1228,  1229. 
dissolution,    voluntary,    iudgment    roll,    on,    § 

1233 


910  INDEX. 

CORPORATIONS— ContiniiecL 

dissolution,  volimtary,  order  for,   §  1230. 

dissolution,    voluntary,   order    for    notice    of, 
§  1230. 
CORRECTION,  pleadings,  §§  432,  472,  473. 

verdict,   informal,   §  619. 
CORROBORATIA'E   EVIDENCE,  defined,   §  1839. 
COSTS,   and  interest  must  be  included  in  judg- 
ment, §  1035. 

attorney's  fees  left  to  agreement,  §  1021. 

deceased's  estate,  action  by  creditor,  §  1503. 

may  be  imposed  as  a  condition  for  continu- 
ance, §  1029. 

bill  of,  §  1033. 

verified  memorandum  of,  to  be  filed,  §  1033. 

filing   after  remittitur,    §  1034. 

fees  of  attorney  left  to  agreement,   §  1021. 

fees  of  referees,  rate  allowed,  §  1028. 

of  referees  in  probate  cases,  §  1508. 

fees  of  short-liand  reporter,    §  271. 

fees  of  referees  may  be  apportioned  in  parti- 
tion, §  768. 

how  awarded  against  counties,  §  1039. 

in  actions  for  w^ages  and  salaries,  a  preferred 
claim,   §  1206. 

in  proceedings  for  condemnation  of  land,    §§ 
1251,  1255. 

in    proceedings    to    contest    elections,   §§  1124- 
1125. 

in  actions  for  usurpation  of  oflice,  §  809. 

in  actions  by  or  against  administrator,  §§  1031, 
1503,    1508,    1510,    1616. 

of  abstract  of  title  in  partition,  §  799. 

of  referees,   §  1028. 

of  referees  in  partition,  §  768. 

of  short-band  reporter,  §  271. 

of  prior  action  for  partition,  §  798. 

of  partition  as  a  lien,  §  796. 

of  appeal,  Avlien  discretionary,  §  1027. 

on  nonsuit,   §  581 . 

on  .iudgment  by  default,  §  585. 

on  ap])eal,  how  claimed  and  recovered,  §  1034. 

on  frivolous  appeal,  damages  may  be  added, 
§957. 

on  disclaimer  in  actions  to  quiet  title,  §  739. 


INDEX.  911 

COSTS— Continued. 

on  application  for  sale  by  guardian,   §  1786. 
on  several  actions  brought  on  a  single  cause, 

§  1023. 
on  review  other  than  by  appeal,  §  1032. 
security  for,  when  may  be  required,  §  1036. 
security,  if  not  given,  action  will  be  dismissed, 

§  1037. 
when  allowed,  of  course,  to  plaintiff,  §  1022. 
when  allowed,  of  course,  to  defendant,  §  1024. 
when  apportioned,  discretion  of  court,  §  1025. 
when  to  be  severed,  §  1026. 
when  allowed,  discretion,  §  1027. 
when  tender  was  made  before  suit,   §  1030. 
in  probate  proceedings,  by  whom  paid,  §  1720. 
on  mandate,  §  1095. 
on  suit  for  claim  against  estate,  §  1503. 
on  application  for  share  of  estate,   §  1661. 
on  action  against  executor,  §  1509. 
claimant  failing  to  recover,   must  pay  costs, 

§  1510. 
allowance  to  executors,  etc.,  §  1616. 
on   trial   by  referees   in   probate   proceedings, 

§  1508. 
on  application  for  sale  of  ward's  estate,  §  1786. 
on    contesting    validity   or    probate    of    will, 

§  1332. 
on  revocation  of  probate  of  will,  §  1332. 
in  justices'  courts,  when  allowed,  §§  896,  924. 
against  county,  how  paid,  §  1039. 
against  state,  how  paid,   §  1038. 
after  tender,  §  1030. 
summons,  fees  where  served  by  person  other 

than  sheriff,  p.  790,  Stat, 
subpoena,  fees  where  served  by  person  other 

sheriff,  p.  790,  Stat, 
insolvency  proceedings,   costs    of.    See    Insol- 

vencv. 
COTENANTS.    See  Parties;    Partition. 
COUNSELORS  AT  LAW.    See  Attorneys. 

generally,   §§  275-299. 
'  COUNTERCLAIM,  cross-complaint,  §  442. 

I     deemed  denied,  allegations  in  are,  §  462. 
demurrer  to,    §§443,  444. 


912  INDEX. 

COUNTERCLAIM— Oontiuiiecl. 
generally,  §§438-441. 
judgments  for  excess,   §  666. 
omission  to  set  up,  fatal,  §  439. 
omission  to    set    up,  fatal    in  justices'    courts, 

§  856. 
separately  stated,  eacli  must  be,  §  441. 
several  may  be  set  up.  §  441. 
specially  pleaded,  must  be,  §  438. 
verdict  on,  §  626. 

not  barred  by  death  or  assignment,   §  489. 
may  be  set  up  by  defendant  on  answer,  §  437. 
action  by  assignee  in  insolvency,  counterclaim 

in.  p.  833,  §  25,  sub.  1. 
COUNTY,  complaint,    must    specify  where    filed, 

§426. 
costs  against,  §  1039. 
officers  exempt  from  jury  duty,  §  200. 
security  for  costs,  not  required  from,  §  1038. 
service  of  summons  on,  §  411. 
summons   must   state,   where   complaint  filed. 

§  407. 
place  of  trial  of  actions  against,  §  394. 
verification  by,  §  446. 
need  not  give  security  in  actions,  §  1058. 
venue  where' county  a  party,  §392. 
new,  act  relating  to  execution  of  final  process 

on  creation   of,   p.  864. 
COUNTY  CLERK.    See  Clerlv. 
COURSE    OE    PROCEEDINGS,    practice    where 

none  specifically  pointed  out,  §  187. 
COURT  CO:\OIISSIONER,  appointment  of,  §  258. 
findings,  etc.,  of,  §§  259.  643,  644. 
findings,  etc.,  of.  exceptions  to  time  for,  §  259. 
findings,  etc.,  of,  review  of,  §  645. 
partner,  not  to  be,  of  practicing  attorney,  §  173. 
powers  of,   §  259. 
reference  to,  §  640. 
report  of,  §§  259.  643,  644. 
report  of,  review  of,  §§  259,  645. 
oath  and  undertnking  of  on  sale  under  fore- 
closure. §  729. 
foreclosure,   manner  of  sale  by  commissioner 

under,   §  726. 
appointment  of  elisor  to  execute  deed,  where 

court  commissioner  died,  §  726. 


INDEX.  9iS 

(•(  )UIiT  COMMISSIONER-  Coiitiiuied. 

report  of  sale.  §  729. 

fees  of  on  sale  under  foreclosure,  §  729. 
COURTS.    See  Adjournment:  Judges. 

absence  of  judges,  §§  i;J9,  140. 

breach  of  promise,  sittings  private,  §  125. 

challenges  for  cause,  to  try.  $  603. 

chambers,  powers  at,  §§  1G.'5-167,  17G. 

classification  of,   §  33. 

cleric's  duties,  §  262. 

court  commissioners,  §§  2.")8.  2.59. 

construe   documents,    must.    §  2102. 

contempt,  §§  721,  1209-1222. 

crim.  con.,  sittings  private.  §  12.5. 

deposits  in,  §§572-574,  2104. 
Superior.    See  Superior  Courts;  Superior  Judges. 

adjournment  of,  §  74. 

always  open,  §  73. 

chambers,  power  at,   §§  166.   176. 

to  be  held  in  each  county,  §  65. 

in  different  counties,  number  of,  §§  65-67. 

judge  by  agreement  of  parties,  §  72. 

judge  holding  court  in  another  count v,  §S  71, 
160. 

judges,  election  of,  etc.,  §§  65,  157. 

judge  may  hold  in  another  county,  §§  71.  160. 

judges    qualifications.   §  157. 

judges   residence,  §  158. 

jurisdiction,   §§  75,   76. 

jurisdiction,  appellate,  §§  75,  77. 

jurisdiction-,  original,  §  76. 

l^rocess  of,  extends  through  the  state,  §  78. 

pro  tempore  judges  of,  §  72. 

residence  of  judge  of,  §  158. 

rules  of,  when  take  effect,  ^  130. 

open  always,   §  73. 

sessions  of,   §  73. 

terms  of  office,  §§  68,  69. 

divorce,  sittings  private,  §  125. 

enumeration  of,  §  33. 

held,  changing  place  where,  §§  142,  143. 

held,  days  on  which  may  be  or  may  not  be, 
§§  133,  134. 

Code  Civ.   Proc— 77. 


914  INDEX. 

COURTS- Continued. 
Superior— holiday,  court  appointed  for,  stands  ad- 
journed, §  135. 

impeachments,  for  trial  of,   §§36-39. 

judge,  absent,  adjourrned,  §§  139,  140. 

judge,  substitute,   §  160. 

jury,  to  charge,  §§607,  609. 

act  transferring  business  and  records  from  old  ! 
courts  to,  p.  866,  §  2. 

continuation  of  trials,  p.  866,  §  2,  Stat. 

act  providing  for  secretary  of  in  certain  coun- 
ties, p.  800. 

act  providing    additional    judge  for    Alameda 
county,  p.  801. 

acts   increasing  and  reducing  superior  courts 
of  Fresno,  pp.801,  802. 

act  providing  additional  judge  for  Humboldt 
county,  p.  804. 

act  increasing  number  of  judges  in  Los  An- 
geles county,  pp.  804,  et  seq. 

act  providing  additional  judge  in  Mono  county, 
p.  806. 

act  providing  for  additional  judge  in   Sacra- 
mento county,  p.  807. 

act  providing  for  additional  judge  in  San  Ber- 
nardino county,  p.  807. 

acts  increasing  and  lowering  number  of  judg- 
es in  San  Diego,  pp.  808,  809. 

acts  increasing  and  lowering  number  of  judg- 
es in  San  Luis  Obispo,  pp.  809,  et  seq. 

acts  increasing  and  reducing  number  of  judg- 
es in  Tulare  county,  p.  813. 

act  providing  separate  judges  for  Sutter  and 
Yuba,  p.  811. 

act  increasing    number    of    judges    in    Santa 
Clara,   p.  81i. 

police,   act  transferring  business  and  records 
to,  after  new  constitution,  p.  867,  §  3. 

acts  relating    to.    See   Appendix    to    Political 
Code,  title  Police  Courts. 
City,   act  abolishing  and  transferring  business, 

p.  867,  §  3. 
Justices',   §§85-115,  832-925. 

jurisdiction,  civil,  §§  112-114. 

jurisdiction  concurrent  with   superior  courts'J 
§113. 


INDEX.  915 

COURTS— Continued. 
Justices— jurisdiction,  criminal,  §  115. 

laTT.  questions  of,  to    be  decided    by.   §§  591, 
2102. 

municipal  criminal  court,  §§  104-110. 

of  record,   §  34. 

order,  preserving-,  §  128. 

police  court,  §  121. 

powers  of,  §§  128-130. 

powers  of  supreme  court  on  appeal,  §  53. 

powers  of  judicial  officers,  §§  176-179. 
Probate,  §§  1294-1809. 

appeals,  §§  1714,  1715. 

attorney  for    minors,  absentees,  devisees,  leg- 
atees,' creditors,  etc.,  appointing,  §  1718. 

chambers,  power  at,  ^  107,  1305,  1808. 

citation,  §§  1707-1711. 

contempt    by    executor,    etc.,    or    guardian    § 
1721. 

decrees  of,  §  1704. 

homestead,  recording  decree,  §  1719. 

issues,  §  1716. 

new  trinls,  §  1714. 

orders  of,  §  1704. 

practice,  rules  of,  §  1713. 

recorded  decrees  of.  are  notice,  §  1706. 

seal,  §§  147-149. 

terms,  §88. 

trials,   §  1717. 

publicity  of  proceedings,  §§  124,  125. 

record  of,  §  34. 

records  and  paper,  transfer  to  new  courts,  §§ 
55,  79. 

rooms  for,  §  144. 

rules,  §§  129,  1.30. 

seals,  §§  147-153. 

seduction,  sittings  private,  §  125. 

sittings  not  public  in  divorce,   crim.   con.,   se- 
duction, and  breach  of  promise,  §  125. 

superseded  courts,   §  79. 
Supreme.    See    Justices  of  the  Supreme  Court; 
Supreme  Courts, 
adjournments,  §  48. 
bailiff,   §§265,  266. 

>   business  of,  §§  43,  45,  47. 


916  INDEX. 

cor  RTS— Continued. 
Supreme— certioiai'i  and  other  write,  §S  51.  54. 

chambers,  powers  in,  §§  165,  176. 

chief  justice,  absence  or  disability,  §  46. 

concurrence  in  decision,   §§  45.  54. 

concurrence  in  issuing  writ,  §  54. 

constitution  of,  §  40. 

courtrooms,  furnisliing,  etc.,   §  47. 

decisions,  opinions  must  be  in  writing.  §§  49. 
53. 

departments.  §  43. 

habeas  corpus.   §§  51,  54. 

held  where.  §  47. 

in  banl^,   §§43-45. 

judge,  power  of  single.   §  43.  , 

judges,  election,  etc.,  §  40. 

judgment,  §§  43-45. 

jurisdiction.  §  50. 

jurisdiction,  appellate,  §§  50,  52,  53 

jurisdiction,    criminal,    §  52. 

jurisdiction,   original.    §§  50.   51. 

jurisdiction,  where  no  mode  of  exercising  ju- 
risdiction provided.  §§  51.  187. 

mandamus  and  otlier  writs,  §§  51.  54. 

modifying  judgment,   §  53. 
open  ah^nys.  S  47. 

opinions  must  be  in  writing.  §§  49.  53. 

quorum,   §  43. 

reasons  for  decisions.  §  49. 

records,  transfer  of  from  old  to  new  court,  § 
55. 

remittitur,  §§  44,  53,  56.  958. 

reversal  by,  §  53. 

rules,  when  take  effect.  §  130. 

seal.  §  147. 

sessions.  §§  47.  48. 

terms.   §§  40.  41. 

transfer  of  papers  to  new"  court.  §  55. 

traveling  expenses.  §  47. 

vacancy  in,  §  42. 

writs  out  of,  §§  51,  54. 

act  transferring  business  and  records  froi 
790.  et  seq. 

supreme  court  commission,  acts  creating,  pj 
old  court  to  new,  p.  865,  et  seq. 


INDi^X.  917 

COURTS  OF  RECORD,  what  are,  §  34. 
CREDIBILITY    OF    WITNESS,    collateral    facts 
may  be  inquired  into,  §  1868. 
See  AA^itness. 
CREDITORS.    See  Debtors. 

when  entitled  to  administer,  §  1365. 

cannot  sue  special  administrator,  §  1415. 

to  present  claims  against  estate,   time  when, 

§  1493. 
proceedings  of,  on    presentation  of    claim,   §§ 

1494-1504. 
may  apply  for  order  of  sale  of  estate,  §  1545. 
may  require  suits  brought  to  recover  property 

of  estate,  §  1590. 
may  except  to  administrator's  account,  §  1645. 
may  assent  to  deduction  on  contingent  claim, 

§  1048. 
may  have  execution  issued  upon  judgment,  § 

1649. 
claim  not  included  in  order,  how  disposed  of, 
§  1650. 
CRIM.  CON.,  private  sittings  in,  §  125. 
CRIMINAL  ACTION,  defined,   §  24. 

holidavs,  court  may  exercise  powers  of  magis- 
trate on,  §  134. 
Penal  Code  provides  for,  §  31. 
CROSS-COMPLAINT,  generally,  §  442. 
CROSS-DEMANDS,   compensate    one    another,    § 
440. 
failure  to  set  up,  fatal,  §§  434,  439. 
generallv,   §§438,  442. 
CROSS-EXAMINATION.    See   Evidence,    §2048. 
CUMULATIVE  EVIDENCE,  definition  of,  §  1838. 
Currency,  recovering  specific,  §667. 
CUSTODY  of  abstract  of  title  in  partition,  §  799. 
of  will,  duty  of  custodian,  §  1298. 
custodian   of  will,   when  subject  to   arrest,    § 

1302. 
custodian  of    public  writings,  bound    to    give 
copies,   §  1893. 

See  Sheriff. 
CUSTOMS,  mining,  effect  of,  §  748. 

usage  of  trade,  etc.,  §  1870. 
DAMAGES  must  be  claimed  in  complaint,  §  426. 
when  to  be  assessed  by  jury,  §  585. 


918  INDEX. 

DAM  AG  ES-  Continued. 

excessive,  ground  for  new  trial,  §  657. 
allowed  for  waste,  §  732. 

double,  in  proceedings  to  recover  embezzled  es- 
tate, §  14G0. 
treble,  in  actions  for  waste,  §  732. 
trebled,  in  actions  for  unlawful  entry,   §§  735. 

1174. 
treble,  in  trespass,  §  733. 
improvements,  when    set    off,  to  claim  for,   § 

741. 
purchaser  under  execution  may  sue  for,  §  746. 
or  for  injury  to  property  after  sale,  §  74G. 
.ioinder  of  claims  for,  §  427. 
in  proceedings  for  mandate,  §  1095. 
in  proceedings  for  usurpation  of  office,  §  807. 
in  nuisance,  §  731. 
for  neglect    to  return    inventory  in  probate,  § 

1450. 
double,  in  case  of  fraud,  §  1572. 
in  case  of  misconduct.  §  1571. 
for  misconduct  in  probate  sale,  §§  1571,  1572. 
on  appeal  tal^en  for  dela3%  §  957. 
on  judgment  by  default,  §  585. 
on  disobedience  to  subpoena,  §  1992. 
DAYS,  judicial  and  nonjudicial,  §§  133-135. 
DEATH,  abatement,  §385. 

attorney,  of,  pi'oceedings  on,  §  286. 

child,  parents  may  maintain  action  for,  §  376. 

claims  on  estate  of  deceased,  §§  1493,  et  seq. 

execution  after,  §  o86. 

limitation,  effect  on,  §§  327,  353. 

negligence  causing,  parents  or  representatives 

may  sue  for,  §§  37G,  377. 
partition  not  affected  by,  §  766. 
possession,  right  of,  not  affected  by,  §  327. 
presumed,  from  person  not  being  heard  of  for 

seven  years,  §  1963. 
set-off,  not  affected  by,  §  440. 
verdict,  death  after,  §  669. 
appointment    of    elisor    to    execute    deed    on 

death  of  court  commissioner,  §  726. 
death  of  insolvent  debtor  after  adjudication  of 

insolvency,  effect  of,  p.  852,  §  61. 
wages  in  case  of,  a  preferred  claim,  §  1205. 


INDEX.  919 

DEATH— Continued. 

to  be  reported  to  public  administrator,  §  1728. 

effect  of,  on  rig-lit  to  possession  of  land,  §  328. 
DEBTOR.    See  Creditors. 

required  to  answer  as  to  his  property,  §  714. 

proceedings  to  compel  appearance,   §  715. 

when  may  be  arested,  §  715. 

wliat  bail  may  be  given,  §  715. 

death  of  insolvent  debtor  after  adjudication 
of  insolvency,  effect  of,  p.  852,  §  61. 

judgment,  proceedings  supplementary  to  exe- 
cution,  §§  714-721. 

debts  of  decedents,  estate  to  be  listed,  §§  1445, 
1447,  1448. 

debts  to  be  collected  by  executor,  §  1581. 

debts,  when  may  be  compounded  and  compro- 
mised, §  1588. 

debts,  when  executor  not  accountable  for,  § 
1615. 

debts,  statement  of,  when  to  be  filed,  §  1512. 

debts,  payment  of  debts  of  decedent,  §§  1643- 
1653. 

debts,  how  attached,  §  542. 

debts,  how  seized  on  execution,  §  688. 

debts  may  be  collected  by  sheriff  on  attach- 
ment, §  547. 

debtor  of  debtor  may  pay  claim  of  creditor, 
§  716.  . 

debtor  of  debtor,  examination  of,  how  con- 
ducted, §  717. 

debtor  of  debtor,  trial,  how  conducted,  §  718. 

debtor  of  debtor,  property,  how  applied,  §  719. 

debtor  of  debtor,  proceedings  on  denial  of  in- 
debtedness,  §  720. 

debtor  of  debtor,  attachment  of,  §§  542,  547, 
688. 

debtor  of  debtor,  payment  of,  from  estates,  §§ 
1G4:M653. 

debtor  of  debtor,  levy  on  execution  under,  §§ 
548,  688. 

debtor  of  debtor,  payment  to  sheriff,  §§  547, 
716. 

debtor  of  debtor,  disobedience  of  order,  how 
punished,   §  721. 


Q20  INDEX. 

DECISION  of  court,  must  be  in  writing-.  §  G32. 

must  be  filed  ^Yitlliu  thirty  days,  §  632. 

demurrer  on,  notice  of.  §  476. 

of  motion  for  a  new  trial,  §  660. 

facts  and  conclusions  must  be  separately  stat 
ed,   §633. 

exceptions  to,  when  may  be  talven,  §  646. 

when  deemed  excepted  to,  §  647. 

when  subject  to  review  on  appeal,  §  956. 

on  motion  to  modify  award  is  final,   §  1289. 
DECLARATION  of  parties,  how  far  binding,   §§ 
1848-1854. 

of  parties,  when  may  be  proved,  §  1870. 

of  deceased  as  to  pedi2:ree.  effect  of,  §  1852. 

"oath"  includes,  §  2097. 

dying  declarations.  §  1870,  subd.  4. 
See  Evidence. 
DECLARATION      OF      INTENTION,     attorney, 

alien.  §  275. 
DEEDS.    See  Conveyances. 

DEFAUIjT  on  failure  to  answer  amended  com- 
plaint,  §432. 

when  .iudgment  to  be  rendered  on,  §  585. 

relief  from  .iudgment  on,  §  473. 

mandate,  not  granted  by,  §  1088. 

relief  to  be  awarded  to  plaintiff  on,  §  580. 

in  justices'  courts,  §  871. 
DEFECT  of  parties,  ground  for  demurrer,  §  430. 

of  account,  further  account  may  be  ordered,  § 
454. 

in  pleadings,  when  disregarded,   §  475. 
DEFENDANT,  definition  of,  §  308. 

summons  must  be  directed  to,  §  407. 

absent,   appointment  of  attorney  for,   §  412. 

publication  of  summons  against,  §  412. 

time  for  appearance,  §  845. 

judgment  by  default  in  justices'  court,  §  871. 

joinder  of  several,  §  380. 

landlord,  when  made,  §  397. 

parties  who  to  be,  §§  370,  384. 
DEFENSES,  seA'eral  may  be  set  forth  in  answer, 
§441. 

must  be  separately  stated  in  answer,  §  441. 

when  plaintiff  may  demur  to,  §  443. 

when  founded  on  written  instrument,   §  448. 


f 


INDEX.  921 

DEFENSPJS— Continued. 

in  notions  for  libel  and  sLander,  §  461. 

assi.unment  not  to  preindice,  §  368. 

generally,  §§  487-442. 

or<lor  of.  on  trial.  ^  607. 
DEFINITIONS,  of  terms  and  plirases,  §  16. 

incapable,  §  1767. 

mentally  incompetent,   §  1767. 

incompetent,  §  1767. 

courts  talie  judicial  notice  of,  §  1875. 
DEGREES  OF  EVIDENCE,  enumerated,  §  1828. 
DELAY.    See  Dismissal. 
DELIVERY,  of  property,  at  execution  sale,  how 

made,  §§  698.  699. 
DEMAND,  of  bill  of  items,  bow  and  when  made, 
§  454. 

in  unlawful  detainer,  §  1161. 
DEMURRER,  must  specify  .urounds,  §  431. 

may  accompany  answer,  §431. 

to  amended  pleadings,    §  432. 

to  amend  pleadings  in  justices'  court,  §  860. 

raises  issues  of  law,   §  589. 

waives  summons,   §  406. 

enlaruement  of  time  to  amend,  §§  473,  1054. 

not  waived  by  simultaneous  answer,  §  472. 

amendments  of,  course  and  effect  of,  §  472. 

overruled,    effect   of,   on   answer,    §  472. 

time  to  amend.  §  476. 

grounds  of.  to  jietition  for  probate,  §  1312. 

grounds  of,  generally,  §  430. 

may  be  taken  to  part  of  pleading,  §  431. 

may  be  taken  to  answer  in  mandate,  §  1091. 

to  answer,  when  to  be  taken,  ij  443. 

to  accusation  against  attorney,  §§  295-296. 

objections,  wlien  deemed  waived.  §  4.34. 

what  issues  are  raised  by,  §  580. 

exceptions,  when  deemed  taken  to  decision  on, 
§647. 

when  defendant  may  demur,  §  430. 

in  justices'  courts.  §  854. 

proceedings  on  in  justices'  courts,  §  8.58. 

judgment  on.  §  636. 
DENIAL,  effect  of     failure  to  deny,  §462. 

must  be  specific,  to  verified  complaint,  §  437. 


922  INDEX. 

DEPOSE,  includes  every  mode    of    written    oath, 

§17. 
DEPOSIT.    See  Deposit  in  Court. 

admitted  funds  to  be  brought  into  court,  §  572. 

appeal,  on,   §§  941-949. 

arrest,  on,  §§  486,  497. 

arrest,  on,  judgment  to  be  satisfied  out  of,  §  500. 

arrest,  on,  substituting  bail  for,  §  §  497,  499. 

attachment,  on,  judgment  to  be    satisfied    out 

of,  §  550. 
clerlv  to  pay  to  county  treasurer,  §§  573,  2104. 
enforcing,   §  574. 

foreclosure  sale,  surplus  on,  §  727. 
justice's  court,  costs.  §  923. 
justices'  courts,  in.  instead  of  undertaking,   § 

926. 
money  on.  statute  of  limitations  does  not  apply 

to,  §348. 
sheriff  to  pay  into  court,  §  498. 
ship,  sale  of,  surplus,   §  825. 
of  fees,  on  trial  of  rights  to  property.  §  689. 
of  summons,   in  post-office.   §  415. 
surplus  on  sale  of  ship,  §  825. 
in  post-office,  on  service  by  mail,  §  1013. 
DEPOSIT     IN     COURT,     of  money  in  hands  of 

trustee,  §  572. 
to  be  placed  by  clerk  with  county  treasurer. 

§§573,  2104. 
order  for,  how  enforced,  §  574. 
of  surplus  money,  in  foreclosure  suits,  §  727. 
of  surplus,  after  sale  of  steamer  or  boat.  §  825. 
on  substitution  of  new  defendant,  §  386. 
on  appeal.  §§  941-949. 
on  appeal,  may  be  waived,  §  948. 
for  costs,  in  justices'  courts.  §  923. 
DEPOSITIONS,"  depose,   term  defined.   §  17. 
court  commissioners  may  take,  §  259. 
definition    of    deposition,    §  2004. 
form  of  taking,  §  2006. 
when  may  be  used,  §  2019. 
of  witness  out  of  state,  when  taken.  §  2020. 
of  witness  in  the  state,  Avlien  taken,  §  2021. 
of  witness  out  of  state,  how  taken,  §  2024. 
commission,  to  whom  to  issue,  §  2024. 
interrogatories,  when  to  be  prepared,  §  2025. 


INDEX.  923 

DEPOSITIONS— Continued. 

authority  and  duties  of  commissioners,  §  2026. 
non-return  of  commission,  wlien  trial  contin- 
ued, §§  595,  2027. 
postponement  for  talking,  §§  595,  2027. 
by  wliom  may  be  used,  §  2028. 
of  witness  in  the  state,   before  whom  taken, 

§  20.1il. 
how  taken,  and  by  whom  may  be  used,  §  2032. 
when  may  be  excluded,   ^  2033. 
once  taken  may  be  read  at  any  time,  §  2034. 
to  be  used  in  other  states,  §  2035. 
of  witness,  how  procured  upon  commission,  § 

2036. 
how  procured  if  no  commission  issue,  §  2037. 
when  may    be    taken    without    commission,  § 

§  2037. 
testimony  of  witness,  how  taken,  §  2038. 
of  witness  may  be  taken  in  case  of  adjourn- 
ment, §  596. 
deposition,  when  may  be  used,   §§  2019,  2028, 

2034. 

issuing  out  of  justice's  court,  how  taken,  §  2024. 
2024. 
DEROGATION  OF  COMMON  LAW,  Code  not  to 

be  deemed  in,  §  4. 
DESCENT,  possession,  right  of,  not  affected  by, 

'§  329. 
DESCRIPTION,  pleading  property,  §  455. 
survey,  property  in,  order  for,  §  743. 
in  deeds,  §  2077. 
DETAINER,   UNLAWFUL.    See  Forcible  Entry. 
DEVISEE.    See  Probate  of  Will;    Estates  of  De- 
ceased Persons. 
DIRECT  EVIDENCE,  defined,  §  18.31. 

what  sufficient  to  prove  facts,  §  1844. 
DISABILITY,  not  to  abate  action,  §  385. 
of  justice,   proceedings  thereon,    §  922. 
when  to  be  availed  of,  §  357. 
when  two  or  more  exist,  §  358. 
limitations,  how  affected  by,  §§  330,  352. 
limitations,  must  exist  when  right  accrues  to 
avoid,  §  357. 

See  Abatement. 
I»ISBURSE:MENTS,  costs,  §1021. 
costs,  bill  of,  §  1033. 


924  INDEX. 

DISCHARGE.       See    Diseliariie    from    Imprison- 
ment;   Insolvency. 

from  arrest,  exonerates  bail,  §  491. 

from  arrest,  effect  of,  §  4SG. 

of  sick  juror,  §  615.  -i 

of  prisoners,  §§  1143-1154. 

of  executors,  from  debt  clue  decedent,  §§  1447. 
1448. 

of  executors,  from  debt  by  will,  §  1448. 

of  executors,  order  for,  §  1G47. 

of  executors,  by  iudgment  or  decree,  §  1697. 
DISCHARGE   FROM   IMPRISONMEIST,   of  per^ 
sons  in  civil  actions,  §  1143. 

for  failure  of  plaintiff  to  furnish  weekly  sup- 
port, §  1154. 

notice  of  application  for,  §  1144. 

service  of  notice,  §  1145. 

examination  of  prisoner  before  .iuds'e,  §  ll-IC). 

interro.catories  may  be  in  writing,  §  1147. 

oath  to  be  administered,  §  1148. 

order  of  discharge,  §  1149. 

successive  applications  for,  §  1150. 

when  final,  §  1151. 

judgment  may  be  enforced  against  estate,    s 
1152. 

prisoner  not  subject  to  rearrest,  after,  §  1153. 
See  Arrest  and  Bail. 
DISCLAIMER,  generally,  §739. 
DISCONTINUANCE,  entering,  §  581. 
DISCRETION  OP  COURT,  on  allowance  of  costs, 
§  1025. 

costs  of  appeal,  when  in,  §  1027. 

costs  on  postponement  of  trial,  are  in,  §  102l>. 

costs  on  proceedings  for  condemnation  of  land 
in,   §1255. 

granting  stay,  under  writ  of  review  in,  §  107i\ 

ordering  issues  in  mandate  to  be  tried  by  jurv 

in,  §  1090. 
evidence  on  collateral  questions,  admitted  in, 
§  18G8. 

view  by  jury  of  premises,  allowed  in.  §  1954. 
order  of  trial.  §  607. 

order  of  proof  in.  §  2042. 

form  of  administering  oath,  in,  §  2095. 

expensos  ol"  roforoes  in  partition,  §§  768,  70(;. 


IXDEX.  925 

niSCliETlUN   OF  roi: LIT— Continued. 

to  order  reference  in  accusation  against  attor- 
ney, §  298. 
lUSMISSAL,  of  action,  for  failure  to  furnish  se- 
curity for  costs.   §  1037. 

when  either  party  may  take  a,  §  594. 

wlien  action  may  be  dismissed,  §  581. 

of  appeal,  for  failure  to  furnish  papers,  §954. 

of  appeal,  effect  of,  §  955. 

failure  to  issue  and  serve  summons,  dismissal 
for.    §  581. 
DISOBEDIENCE.    See   Contempts. 
DISQUALIFICATIONS,   of  judge,    §  170. 

of  judge,  ground  for  removal  of  cause,  §  397. 

executor  may  qualify  on  removal  of,  §  1354. 

of  judge  in  probate,  proceedings,  §  1430. 

of  jurors,  enumerated.  §  G02. 

of   referee,    enumerated,    §  641. 
DISSOLVING    CORPORATIONS.      See    Corpora- 
tions. 
DISTRIBUTION.    See  Estates  of  Deceased   Per- 
sons. 
DIVORCE,  jurisdiction  of  proceedings  for,  §  70. 

])leadings  and  testimonv  to  be  kept  private,  § 
125. 

I)rivate  sittings,  §  125. 
DOCKET,  of  judgment,  to  be  kept  by  clerk.  §  071. 

what  constitutes,  §  672. 

entries  in,  how  made,   §  072. 

to  be  open  for  ]mblic  inspection,  §  673. 

transcript  of,  may  be  tiled  in  other  counties,  § 
074. 

satisfaction  of  iudgment.  to  be  entered  in,   § 
075. 

in  justices'  courts  in  cities  and  counties,  §  93. 

of  justice  of  peace,  pleadings  to  be  entered  in, 
§  851. 

of  justice.  Avhat  to  contain,  5  911. 

of  justice,  as  primary  evidence,   §  912. 

index  to  be  kept  by  justice,  §  913. 

of  justice,  to  be  delivered  to  successor,  §  914. 

proceedings,  on  ofiice  becoming  vacant,  §  915. 

(Execution  may  issue  on.  §  OK}. 

transcript  of  docl^et  of  foi-eign  justice,  as  evi- 
dence,  §  1921. 

Code  Civ.   Proc— 78. 


I 


926  INDEX. 

DOCKET-Coutmued. 

transcript,  how  autiienticated,  §  1922. 

copy  of  to  be  produced  by  redemptioner,  §  705. 
DYING  DECLAKATiUN,  §  1870,  subd.  4. 
EJECTMENT,  alienation  during  suit,  §  740. 

costs,   §  1022. 

improvements,  set-olf  for,  §  741. 

joinder  of  causes  of  action  with,  §  427. 

survey,   etc.,  of  property,   §§  742,   743. 

title,    plaintiff's,    terminating     during    suit,    § 
740. 

verdict  in,  §  625. 
ELECTION.    See  Contesting  Elections. 

contesting,  §§  1111-1127. 

justices   of   the   peace,    §  110. 

superior  court  judges,    §  65. 

supreme  court  judges,  §  40. 

power  to  declare  person  having  highest  vote 
elected,  though  not  the  one  returned,  §  1123. 
ELISOR,  fee  for  summoning  jurors,  §  228. 

appointment  of,  to  execute  deed  on  death  of 
court  commissioner,  §  726. 
EMBEZZLEMENT,  administrator,  etc.,  by,  §  1626. 

arrest,   ground   for,    §  479. 

estate  of  decedent,  §§  1458-1461,  1626. 

ward's  property,  §  1800. 
EMINENT  DOMAIN,  all  former  laws  abolished, 
§  1258. 

Code,  when  to  take  effect,  §  1258. 

definition  of,  §  1237. 

purposes  of  its  exercise,  §  1238. 

estates  which  may  be  acquired  under,  §  1239. 

private  property  defined,  classes  enumerated, 
§  1240. 

facts  to  be  found  before  condemnation,  §  1241. 

parties  may  locate,  may  enter  thereon,  §  1242. 

jurisdiction  in  superior  court,   §  1243. 

complaint,  contents  of,  §  1244. 

summons,  what  to  contain— issuance  and  ser- 
vice, §  1245. 

answer,  what    to    show,  and    how    verified,  §   ^ 
1246. 

counter-claim,   §§438,  442. 

jurisdiction  to  regulate  crossings  and  common 
use,    §  1247. 


1 


INDEX.  P27 

EMINENT   DOMAIN— Contiimed. 
bearing,  §  1248. 

court  or  .iuiT  to  assess  damagres,  §  1248. 
compensation  and   measure  thereof.    §  1249. 
new  proceedin.2;s  to  cure  defective  title,  §  1250. 
payment  of  damages,  §  1251. 
payment,  to  whom  made.  §  1252. 
final  order  of  condemnation,  what  to  contain, 

§  1253. 
order  when  filed,  title  vests,  §  1253. 
putting-  plaintiff  in  possession,  §  1254. 
costs  apportioned  in  descretion  of  courts,  §  1255. 
rules  of  practice  in  proceeding  under,  §  1256. 
new  trials  and  appeals.   §  1257. 
construction  of  Code  as  to,  §  1258, 
ENGLISH  LANGUAGE,  proceedings  to  be  in,  § 

185. 
ENTIvY,   real  estate,    on,   when   deemed   valid,    § 
322. 
entries,  by  decedent,   §  1946. 
in  course  of  business,   §  1947. 
ENTRY  OF   JUDGMENT   OR   ORDER,   superior 
court  always  open  for,  §  73. 
supreme  court  always  open,   §  47. 
ERRORS,  disregarded,  to  be,  §  475. 

law,  of,  new  trial  for,  §  657. 
ESCHEATED    ESTATES,   appearance,    §1271. 
claimants,  §  1272. 
genera llv,  §§  12(59-1272. 
pleadings,    §  1271. 
proceedings  relative  to,  §  1269. 
receiver,  §  1270. 
trial,    §  1271. 
ESTATE  FOR  LIFE,  decreeing  ended  on  tenant's 
death,  §  1723. 
setting  off  in  partition,   §  770. 
ESTATES     OF      DECEASED      PERSONS.     See 
Executors  and  Administrntors— Probate  Pro- 
ceedings. 
Inventory,  appraisement  and  possession  of. 
inventory    to    be    returned,    including     home- 
stead, §  1443. 
appraiser,  who  may  not  be  appointed,  §  1444. 
appraisers.    Jsee  Appraisers. 


928  INDEX. 

EjstaTES    of    deceased    TEliSOXS— Contin- 
ued. 

appraisement  and  pay  of  appraisers,   §  1444. 

appraisers,  by  TS'hom  appointed,  §  1444. 

oatli  of  appraisers.  §  1445. 

inventory,  how  made.   §  1445. 

inventory  to  account  for  money,  §  1446. 

if    all    money,  no    appraisement    necessary,   §' 
1446. 

claim  a. gainst  executor  to    be    included    in  in- 
ventory, §  1447. 

discbar^-e  of  debt  or  bequest  in  will  to  be  in- 
cluded. §  1448. 

appraisers  to  make  oath  to  inventory,  §  1449. 

revocation  of  letters  for  neglect  to  return  in- 
ventory, §  1450. 

inventory  of  after-discovered  property,  §  1451. 

administrator  and  exectitor  to  possess  estate, 
§  1452. 

to  deliver  estate  to  heirs  and  devisees,  when, 
§  1453. 

acts   authorizing    husband,   wife,   or    next    of 
kin  to  collect  bank  deposit,  pp.  814  et  seq. 
Embezzlement  and  surrender  of  property  of. 

embezzlement  before    grant    of    letters  testa- 
mentary, §  14.58. 

citation  to  issue  to  person  suspected,  §  1459. 

penalty  for  refusal  to  obey  citation,   §  1460. 

disclosures    may  be    compelled    bv  imprison- 
ment, §  1460. 

liability  for  double  damages,  §  1460. 

persons    intrusted    with    estate    may  be    cited 
to  account,  §  1461. 
Of  provision  for  support  of  family. 

widow  and  minor  children  may  remain  in  de- 
cedent's house,   §   1464. 

property  exempt  from  execution  set  apart  for 
family  use,  §  1465. 

court  or  judge    may  make    extra    allowance, 
§  1466. 

payment     of     alloAvance     preferred    to    other 
§  1469. 

estates,  when  to    be  summarilv  administered, 
charges,  S>,  1467. 

property  set  apart,  how  apportioned.  §  1468. 

estates,  when  to  go  to  wife  and  child,  S  1469. 


r 


liNDEX.  929 


ESTATES    OF    DECEASED    PEKSOXS- Coat 
wlion  all  property  to  go  to  children,  §  1470. 
Of  the  homestead, 
rights  of  survivor  to  homestead,  §  1474. 
selected  and  recorded  homestead  to  be  set  off, 

§  1475. 
subsisting  liens  to  be  paid  by  solvent  estate, 

S  1475. 
appraisers,  when  to  carve    out    of    original,  § 

1476. 
report  of  appraisers  thereon,  §  1477. 
majority    and    minority    reports,    which    con- 
firmed, §  1477. 
dav  to  be  set  for    confirmation    or    rejection, 

§  1478. 
if  report  rejected,  other  appraisers  to  be  ap- 
pointed, §  1479. 
if  again  rejected,  partition  suit  to  be  brought, 

§  1479. 
instead    of    dividing    homestead,   what    steps 

may  be  taken,  §  1480. 
homestead,    when    may   be    petitioned    for.    § 

1481. 
court  to  direct  partition  suit,  when,  §  1482. 
court  may  cause  appraisement  of  common  or 

separate  property,  §  1483. 
new  appraisement,  when  ordered,  §  1484. 
public  sale  of  property,  when  may  be  ordered, 

§  1484. 
costs    of    proceedings,  to    whom    chargeable, 

§  1485. 
successors   to    rights    of    homestead    owners, 

powers  and  rights  of,  §  1485. 
certified  copies  of  final  order  to    be  recorded, 

§  1486. 
Of  claims  against  the  estate, 
notice  to  be  given  to  creditors,  §  1490. 
notice,  how  given,  §  1490. 
removal  of  executor  for  neglect  to  give  notice, 

§  1511. 
time  expressed  in  notice,  §  1491. 
copy  of  notice  and  aflidavit  to  be  filed,  §  1492. 
time  witliin  wliich  to  present  claims.  §  1493. 
claims  to  be  sworn  to,  interest,  §  1494. 
claim    may  be    presented    by  superior    judge, 

§  1495. 


930  INDEX. 

ESTATES    OF    DECEASED    PERSONS— Cont 
allowance  to  be  indorsed  on  claim,   §  1496. 
rejection,  what  deemed,  §  1496. 
approved  claims  or  copies  to  be  filed,  §  1497. 
duty  of  clerli,  §  1497. 

claims  secured  by  liens,  how  described,  §  1497. 
rejected  claims,  when  to  be  sued  for,  §  1498. 
claims  barred  by  statute    not   to    be   allowed, 

§  1499. 
examination  of  claimant  on  oath,  §  1499. 
claims  must  be  presented  before  suit,  §  1500. 
exceptions  as  to  liens,  §  1500. 
limitation  of  time,   how   affected  by  vacancy 

of  administration.   §  1501. 
claims  in  actions    pending    before    decease,   § 

1502. 
allowance  of  claim  in  part,  §  1503. 
judgment  against  executor,  effect  of,  §  1504. 
execution  not  to    issue    after    death,  when,  § 

1505. 
property  levied  on  may  be  sold,  proceeds,  how 

applied,   §  1505. 
judgment,  when  not  a  lien,  §  1506. 
doubtful  claims  may  be  referred,  §  1507. 
allowance  or    rejection    bv  referee,   effect  of, 

§  1507. 
trial     by   referee,    how     confirmed,    effect   of, 

§  1508. 
costs  on  contest  of,  liability  for,  §  1509. 
claim  of  executor,  to  M^hom  presented,  §  1510. 
suit  by  executor  for  claim  rejected,  how  com- 
menced, §  1510. 
executor  to  return  statement  of,   §  1512. 
statement,  v/hat  to  contain,  §  1512. 
claims  paid  without  affidavit  and   allowance, 

when  allowed,  p.  815,  Stat. 
Sales  and  conveyance  of  property  of  decedents, 
personal    estate    first     chargeable    for    debts, 

§  1516. 
real  estate,  when  to  be  sold,  §  1516. 
no  sales  valid,  except  by  order  of  court,  §  1517. 
rtetitions  for  orders  of  sale,  showing  required, 
■  §  1518. 
but  one  petition,  order  and  sale  to  be  had,  § 

1519. 


INDEX.  931 

ESTATES    OF    DECEASED    PERSONS— Coat 

perishable    aud    depreciating    property  to    be 
sold,  §  1522. 

order  to  sell  personal  property.  §  1523. 

partnership   interests   and    choses     in    action, 
how  sold,  §  1524. 

order  of  sale,  what  to  direct,  §  1525. 

what  to  be  first  sold,  §  1525. 

sale  of  personal  property  to  be  made  at  auc- 
tion, §  1526. 

mines  may  be  sold,  how,  §  1529. 

petition  for,  who  may  file  and  what  to  con- 
tain,  §  1530. 

order  to  show  cause,  how  made,  notice,  §  1531. 

order  of  sale  of  mines,  how  and  when  made, 
§  1532. 

provisions  of  Code  applicable  to  sale  of  mines, 
§   1533. 

real  estate  may  be  sold,  when,  §  1536. 

verified   petition    for    sale,   what    to    contain, 
§  1537. 

to  what  petition  may  refer,  §  1537. 

order  to  interested  persons  to  appear.  §  1538. 

order  to  show  cause,  must  be  previously  serv- 
ed, §  1539. 

notice,  when  to  be  served,  §  1539. 

notice  to  be  dispensed  with,  when,  §  1539. 

hearing  of  petition  after  proof  of   service,    § 
1540.^ 

presentation  of  claims  at  hearing,  §  1.540. 

who  may  be  examined  at  hearing,  §  1.541. 
.        court  may  authorize  sale  of  all  or  part  of,  § 
I  1.542. 

*       order  of  sale,  when  to  be  made,  §  1543. 

order,  what  to  contain,  §  1.544. 

sale  may  be  public  or  private,  §  1544. 

any  person  interested  may  apply  for  order,  § 
1.545. 

form  of  petition  by  party  interested,  §  1545. 

executor    to    be    served  with    copy    of    order, 
§  1546. 

notice  of  sale  to  be    posted    and    published,  § 
1.547. 

time  and  place  of  sale,  §  1.548. 

private  sale,  how  made:  notice,  how  given.   § 
1549. 


932  INDEX. 

ESTATES    OF    DECEASED    rEKSOXS— Coiil 

bids,  where  and  hoAv  recorded,  §  1549. 

ninety  per  cent  of  appraised  value  must  be 
offered,  §  1550. 

purchase  money  on  credit  sale,  how  secured, 
§  1551. 

return  of  proceedings  on  sale  to  be  made,  § 
1552. 

hearing-  upon  return,  proceedings  thereon, 
§  1552. 

when  a  resale  may  be  ordered,  §  1552. 

objections  to  confirmation,  Avho  may  file,  § 
1553. 

order  of  confirmation,  when  and  when  not  to 
be  made,  §  1554. 

conveyance,  when  to  be  executed,  §  1555. 

order  of  confirmation,  what  to  state,  §  1556. 

sale,  when  may  be  postponed,  §  1557. 

notice  of  postponement  to  be  given,  §  1558. 

sale  of  real  estate  to  pay  legacy,  §  1559. 

where  payment  of  debts  is  provided  for  bv 
will,  §  1560. 

sale  witnout  order,  when  may  be  made,  §  1561. 

where  provision  by  will  is  insufficient,  §  1562. 

estate  subject  to  debts,  proportionate  liabil- 
ity, §  1563. 

contribution  among  legatees,  when  to  be  had, 
§  1564. 

interest  in  contract  for  purchase  of  lands  may 
be  sold,   §   1565. 

conditions  of  sale  of  interest  in  contract,  § 
1566. 

purchaser  to  give  bond,  §  1567. 

assignment  of  contract  on  confirmation  of 
sale,   §  1568. 

sales  of  lands  imder  mortgage  liens,   §  1569. 

holder  of  mortgage  or  lien  may  purchase, 
S  1570. 

his  receipt  for  claim  a  valid  payment,  §  1570. 

administrator  or  executor  liable  for  miscon- 
duct in  sale,  §  1571. 

liabilitv  in  double  the  value  for  fraudulent 
sale,   §  1572. 

limitation  of  actions  for  vacating  sale.  §  1573. 

minority  and  other  disability  to  avoid  limita- 
tion,  §  1574. 


INDEX.  933 

ESTATES    OF    DECEASED    PERSONS— Cout 
account  of  sale  to  be  returned,  §  1575. 
executor,  etc.,  not  to  be  purchaser,  §  1576. 
Of  conveyance  of  real  estate  in  certain  cases, 
executors  to  complete    contracts  for    sale    of 

real  estate,  §  1597. 
petition  for  conveyance  and  notice  of  hearing", 

§  1598. 
interested  parties  may  contest,  §  1599. 
conveyances,    when    ordered    to    be    made,    § 

1600. 
execution  of  conveyance  and  record,  how  en- 
forced, §  1601. 
ri.ahts  of  petitioner  to  enforce  contract,  §  1602. 
effect  of  convevance.  §  1603.  ^     / 

effect  of  recording  copy  of  decree,  §  1604.       ^"i^Vh 
recording  decree  not  to    supersede    power  of     /      / 

court,  §  1605.  /^/^ 

I     successors  to  partv  having    right  to    convev- 
f        ance,  §  1606. 

Avhen  decree  to  direct  possession  given,  §  1607. 
Payment  of  debts  of. 
order  in  which  to  be  paid,  §  1643. 
where  property  insufficient  to  pay  mortgage, 

$  1644. 
dividend,  when  to  be  paid,  §  1645. 
expenses  of  funeral,  and  of  last  sickness,  and 

family  allowance,  §  1646. 
order  for  payment  of  debts  and  discharge  of 

executor,  §'  1647. 
provision  for  disputed  and  contin^-ent  claims, 

§  1648. 
after     decree,     executor     personally     liable,  § 

1649. 
claims  not  included  in  order,  how  disposed  of, 

§  1650. 
order  for  payment  of  legacies  and  extension 

of  time,  §  1651. 
final  account,  when  to  be  made,  §  1652. 
neglect  to  render  final  account,  how  treated, 

§   1653. 
I*nrtial  distribution  prior  to  final  settlement  of. 
payment  of     legacies    upon     giving     bonds,  § 

165S. 
notice  of  application  for  legacies,  §  1659. 


934  INDEX. 

ESTATES    OF    DECEASED    PERSONS-Cout 

who  may  resist  application,  §  1660. 

decree  to  require  bond,  which  must  be  given, 
§  1661. 

decree  may  order  whole  or  part  of  share  de- 
livered, §  1661. 

partition,  where  necessary,  ]iow  made,  §  1661. 

costs  to  be  paid  by  applicant,  §  1661. 

order  of  payment  of  bond,  and  suit  thereon, 
§  1662. 
Distribution  on  final  settlement. 

distribution,  how  made  and  to  whom,  §  1665. 

what  the  decree  must  contain,  §  1666. 

decree  of  distribution  final,  §  1666. 

distribution  when  decedent  was  foreign  resi- 
dent, §  1667. 

decree  to  be  paid  only  after  notice,  §  1668. 

taxes  to  be  paid  before  distribution,  §  1660. 

distribution,    petition    for,    after    one    year,  5 
1633. 

distribution,  notice  of  petition  for,  §  1633. 

distribution,  further     notice  where     notice  in- 
sufficient, §  1668. 

distribution,  talking     proceedings  to  ascertain 
share  of  distributee,  §  1633. 

distribution  of  share  of  infant  or  incompetent 
without  guardian  to  treasurer,   §  17031^. 

distribution,  absentees,  deposit  of  money  with 
county  treasurer,  §  1691. 

distribution,  absentees,  appointing     agent     to 
tal^e  possession  for,   §  1691. 

distribution,  taking  bond  from  distributee  on, 
§  1633. 

distribution,    jurisdiction     retained     after     to 
settle  accounts  of  trustees,  §  1699. 
Distribution  and  partition. 

partition  to  be  made  of    estate    in    common, 
§  1675. 

commissioners  for  partition,  §  1675. 

petition  for  partition,   notice     thereof     to   be 
given,  §  1676. 

estate     in  different     counties,  how  divided,  § 
1677. 

partition  after  some    heirs  have  parted  with 
their  interest,  §  1678. 


INDEX.  935 

ESTATES    OF    DECEASED    PERSONS— Cont 
shares  to  be  set  out  by  metes  and  bounds,  § 

1679. 
whole  estate  may  be  assigned  to  one,  when, 

§  1680. 
equality  of  partition:  payment  for,  by  whom 

made,  §  1681. 
estate  may  be  sold  and  proceeds  distributed, 

§  1682. 
notice  before  partition,  to  whom  given,  §  1683. 
commissioners,  duties  of,  §  1683. 
commissioners,  to  report  and  partition    to    be 

recorded,  §  1684. 
commissioners,  when     not     necessary  to     ap- 
point, §  1685. 
advancements  made  to  heirs,  how  heard  and 

determined,   §   1686. 
Continuation  of  administration, 
petition,  notice,  and  hearing,   §  1670. 
closing  of  estate  pending,  §  1670. 
beyond  time  mentioned  in  will,  §  1670. 
Agents  for  absent  interested  parties, 
court  may  appoint  agent  for  aosentee,  §  1691. 
agent  to  give  bond,  compensation  of,  §  1692. 
unclaimed  estate,  how  disposed  of,   §  1693. 
real  and  personal  property  of  absentee,  when 

to  be  sold,  §  1694. 
liability  of  agent  on  his  bond,  §  1695. 
certificate  to  claimant  of  money  in  treasury, 

§  1696. 
final  settlement,  decree,  and  discharge,  §  1697. 
discovery   of   property  after  final   settlement, 

§  1698. 
proceedings    to     apply    to     proceedings  as  to 

guardian  and  ward,  §  1808. 

See  Executors    and    Administrators;    Public 
Administrator. 
ESTOPPET.,  generally,  §§  1908,  1962. 
landlord  and  tenant,  §  1962. 
"standing  by,"  §  1962. 
sureties  bound  by,  §  1912. 
matters  adjudged.  §§  1908.  1911. 
EVIDENCE.      See     Examination    of    Witnesses; 

'\\'ritings. 
Definitions  of. 
judicial  evidence,  §  1823. 


t.3r,  INDEX. 

EA'iI  )EN'CE-  Continued. 

proof,  §  1824. 

law  of  evidence,  §  1825. 

degree  of  certainty  required,  §  1826. 

primary  evidence.  §  1829. 

secondary  evidence,  §  1830. 

direct  evidence,  §  1881. 

indirect  evidence,  §  1832. 

indirect  evidence  classified,  §  1957. 

prima  facie  evidence,  §  1833. 

liartial  evidence,  §  1834. 

satisfactory  evidence,   §  1835.^ 

indispensable  evidence,  §  1836. 

conclusive  evidence,  §  1837. 

conclusive  evidence,  how  restricted,   §  19  <  8. 

cumulative  evidence,   §  1838^ 

corroborative  evidence,  §  1839. 

inference  defined,   §  1958. 

presumption  defined,  §  1959. 
Degree  of  proof. 

Avhat  required  to  establish  fact,  §  1826. 

kinds  of  evidence,  §  1827. 

degrees  of  eA'idence,  §  1828. 

one  witness,  when  sufficient  to    prove  a  fact, 
§  1844. 
CJeneral  principles. 

direct   evidence,    what    sufficient   to    prove   a 
fact.  §  1844. 

testimony  confined  to  personal    knowledge.   § 
1845. 

testimonv  to  be  in  presence  of  persons  affect- 
ed. §  1846. 

witness  presumed  to  speak  the  truth,  §  1847. 

])resumption.  how  repelled.  §§  1847,  2051,  2052. 

one  person  not    affected    by  acts  of  another, 
§  1848. 

evidence    relating    to    third    person— primary 
when,   §  1851. 

declarations  of  predecessors  in  title,  as,  §  1849. 

declarations  which  are     part  of     transaction, 
§  1850. 

(leclaration    of     decedent,    evidence    of    pedi- 
gree. §  1852. 

declarations     of     decedent,  evidence     against 
successor.  §  1853. 


INDEX.  937 

E^'r^)EXCE— Coutiiuied. 

declaraiious.     See  post.  Kind  and    Degrees    ol: 

Evidence, 
part  of  transactiou  proved,  the  whole  admis- 
sible, §  1854. 
contents  of  writing,  how  proved,  §  1855. 
agreement     in     writing,  deemed     the     whole, 

§  185(). 
construction     in     writing,  relates  to     place,  § 

1857. 
construction     of     statutes     and     instruments, 

rule  of,  §  1858. 
intention  of  legislature  or  parties  to    be    pur- 
sued, §  1859. 
circumstances  to  be  considered,  §  1860. 
terms  to  be  construed  by  general  acceptation, 

§  1861. 
written,  to  control    printed    words,   in    blanlc 

form,  §1862. 
persons  skilled  to  decipher  characters,  §  1863. 
of  two  constructions,  which  to    be    preferred, 

§  1864. 
written   instrument  construed    as    understood 

by  parties,  §  1865, 
parol  to  affect  writing,  §  1856. 
construction  to  be  in  favor  of  natural  right, 

§   1866. 
material     allegations    only,    need    be    proved, 

§  1867. 
evidence  to   be   relevant  to   questions   in   dis- 
pute, §  3868. 
evidence  on  collateral  (luestions  in  discretion 

of  court.  §  1868. 
affirmative  alleuations  only  to    be    proved.    § 

1869. 
facts  which  may  be  proved  on  trial,  §  1870. 
suppressed  presumed  adverse,   §  1963. 
judicial  notice,  of  what  facts  court  will  take, 

§  1875. 
persons  who  cannot  testify,  §  1880. 
Kinds  and  degrees  of  evidence, 
kinds  of,  §  1827. 
degrees  of,  §  1828. 
conclusive,  §§  1837,  1978. 

Code  Civ.-  Proc— 79. 


938  INDEX. 

EVIDENCE— CoutinuecL 

knowledge     of     court,  facts     within,    §§  1875, 

2102. 
of  witnesses.    See  Witnesses, 
aclinowledge  writings  as  evidence,  §  1951. 
entry  in  court  minutes,  §§  1376,  1429. 
of  material  objects    presented  to    the    senses, 

§  1954. 
when  an  inference  arises,  §  19G0. 
presumption,     when     may     be     controverted, 

§  1961. 
specification     of     conclusive     presumptions,  § 

1962. 
specification    of    controvertible    presumptions, 

§  1963. 
presumptions.    See  Presumptions, 
what  evidence  indispensable,  §  1967. 
perjury     and     treason,   evidence     required  to 

prove,  §  1968. 
admission,  §  1845. 
admission,  adultery,  of,  not  sufficient  alone  in 

divorce,  §  2079. 
admission,  entries  in  books,  §  1946. 
admission,  offer  to  compromise  is  not,  §  2078. 
admission,  predecessors  in  title,  §  1849. 
admission,  relation    between    parties,  §§  1848- 

1863. 
admission,  res  gestae  part  of,  §  1850. 
admission,  silence,  §  1845. 
admission,  trial  may  be  proved  on,  §  1870. 
admission,  writing,  execution  of,  §  1942. 
adultery,  confession     alone     insuflicient  in  di- 
vorce, §  2009. 
act,  part  of,  in,  all  may  be  put  in.  §  1854. 
declarations,  interest,  against,  §  1853. 
declarations,  pedigree,  §  1852. 
declarations,  predecessors  in  title.  §  1849. 
declarations,  proof  on  trial,  §  1870. 
declarations,  res  gestae,  part  of,  §  1850. 
declarations.    See  ante.  General  Principles, 
confession,  adultery,  effect    of    in    divorce.   § 

2079. 
confessions  by  accused,  §  1870. 
prima  facie,  §  1833. 
prima  facie,  boards,  entries  by,  §§  1920,  1926. 


INDEX.     .  939 

EVIDENCE— Continued. 

prima  facie,  charts,  §  ]936. 

prima  facie,  decedent's  entries,  when,  §  194tr. 

prima  facie,  historical  boolis,   §  103G. 

prima  facie,  justice's  docliet,  §  912. 

prima  facie,  maps,  §  1936. 

prima  facie,  officers,  entries  by,  §§  1920,  1926. 

prima  facie,  orders  not  final,  are,  §  1909. 

prima  facie,  phono.srraphic  reporter's  notes, 
transcript  of,  §  270. 

prima  facie,  presumption,  what  is,  §  1959. 

prima  facie,  third  person,  oblig'ation  of,  evi- 
dence against  him  is  evidence  against  par- 
ty, §  1851. 

primary,  §  1829. 

secondary,  what  is,  §  1830. 

privileged  communications,   §   1881. 

writings.    See  Writings. 
Statute  of  Frauds. 

will,  to  be  in  writing,  §  1969. 

revocation  of  will,  what  required  to  prove,  § 
1970. 

transfer  of  real  propertj',  evidence  required, 
§§  1971,  1972. 

agreement  not  in  writing,  when  invalid,  § 
1973. 

representation     as  to  credit    of    third     party, 
§  1974. 
Production  of  evidence. 

by  whom  to  be  produced,  §  1981. 

writing  altered,  who  to  explain,  §  1982. 

warrants  to  commit  witnesses,  §  1994. 

when  witness  prisoner,  §  1995. 

manner  of  production— testimony,  how  taken, 
§  2002. 

testimony  of  witness  in  State.  §  2021. 

testimony  of  witness  out  of  State,  §  2024. 

how  to  procure  testimony  on  commission, 
§  2036. 

discharge  of  witness,  §  2070. 

means  of  production.  See  Subpoena;  Wit- 
nesses. 

See  Affidavit;  Depositions:    Examination  of 
Witnesses. 
Effect  of  evidence. 

jury  to  judge  of,  §  2061. 


940  INDEX. 

EVIDENCE— Continued. 

conclusive  evidence,  jury  not  to  judge  effect 

of,  §  2061. 
to  be  instructed  by  court  as  to,  §  2061. 
Miscellaneous  provisions  as  to  evidence, 
accounts,  when  not  admissible,  §  454. 
an  offer  equivalent  to  payment,  §  2074. 
whoever  pays  is  entitled  to  a  receipt.  §  2075. 
objections  to  tender,  at  what  time  to  be  tak- 
en. §  2076. 
rules    for    construing    description    of     land,  § 

2077. 
offer  of  compromise     not     an     admission  of 

debt,  §  2078. 
confession  of  adultery,   effect  of    in    divorce, 

§  2079. 
proceedings     to     perpetuate     testimony.     See 

Testimony, 
administration  of  oatlis  and  affirmations.    See 

Oath, 
questions  of  fact  to  be  decided  by  jury,  §  2101. 
what  questions  to  be  decided  by  court,  §  2102. 
questions  of  fact  to  be   decided  by  court  or 

referee,   §  2108. 
EXAMINATION   of  debtor   of  judgment   debtor, 

proceedings  in,  §  717. 
trial  of,  how  conducted.  §  718. 
EXAMINATION    OF    WITNESS,   oral   examina- 
tion defined,  §  2005. 
order  of  proof,  how  regulated,  §  2042. 
when  witness  may  be  excluded,   §  2043. 
court  mav    control    mode    of    interrogation,   § 

2044. 
direct  and  cross-examination  defined,   §  2445. 
leading  question  defined,  §  2046. 
witness  mav  refresh  memory  by  notes,  when, 

§  2047. 
cross-examination,  as  to  Avhat,  §  2048. 
partv  producing  not  allowed  to  lead  witness, 

§  2049. 
witnesses,  wlien  and  hoM'  examined,  §  20.50. 
how  impeached,  general  reputation,  §  2051. 
impeachment    of    witness,   inconsistent    state- 
ments, §  2052. 
evidence  of    good  character,  when    allowed,  § 

2053. 


INDEX.  941 

EXAMINATION  OF  AVITNESS— Coutinued. 

writing:  shown  to  witness  subject    to    inspec- 
tion, §  2054. 

See  Witnesses. 
EXCEPTIONS  may  be  tal^en,  time  wlien,  §  646. 
what  deemed  excepted  to,  §  647. 
form  of,  §  648. 
to  be  signed  by  judge  and  filed  with  clerlv.   § 

649. 
how  taljen  on  notice  to  adverse  party,  §  650. 
after  judgment,  how  taken,  §  651. 
proceedings  on  refusal  of  court  to  allow,  §  652. 
where  judge  ceases    to    hold    office,  file,  how 

settled,  §  653. 
may  be  taken  to  report  of  referee,  §  645. 
bill   of,   necessary   on   motion    for    new   trial, 

§  658. 
bill  of,  part  of  judgment  roll,  §  670. 
to  sureties  in  libel  and  slander,  §  416. 
to  sureties  on  undertakings,  how  taken,  §  948. 
to     sureties     in    replevin,  when    to    be  taken, 

§  513. 
to  referee's  report,  §    645. 
EXCESSIVE    damages    as  ground  for  new  trial, 

§657. 
EXECUTION,  generally,  §§  681-721. 
within  what  time  may  issue,  §  681. 
who  may  issue,  form  of,  what  to    require,   § 

682. 
when  made  returnable,  §  683. 
money  judgments    and    others,  how  enforced, 

§  684. 
execution  after  five    years,   when    allowed.    § 

685. 
when  may  issue  after  death  of  party,  §  686. 
how  and  to  whom  issued,  §  687. 
debts  and  credits  liable  to  seizure  on,  §  688. 
gold  dust,  §  688. 

property  not  affected  till  levy  made,  §  688. 
right  of  property  claimed  by  tliird  partv,  how 

tried,  §  689. 
deposit  of  fees  on  trial  of  right,  §  689. 
property  exempt  from,  §  690. 
writ  of,  how  executed,  §  691. 
sale  of  real  estate,  absolute  when,  §  703. 
sale,  bids,  etc.,  §§  695-697. 


942  INDEX. 

EXECUTION— Continued. 

sale,  certificate  of,  §§  699,  700. 

sale,  deed  of  sheriff,  §  703. 

sale,  delinquent  purchaser,  §§  695-697. 

sale,  delivery  under,  §§  698-700. 

sale,  generally,  §  694. 

sale,  notice  of,  §§  692,  693. 

sale,  proceedings,  §  694. 

sale,  real  estate,  eviction  of  purchaser,  reme- 
dy,  §708. 

sale,  real  estate,  rents  after,  §  707. 

sale,  redemptioner's,  §  701. 

sale,  waste,  damages  for.  §  746. 

sale,  waste,  restraining,  §  706. 

sale,  without  notice,  penalty,  §  693. 

serving,  effect  on  property,  §  688. 

serving,  generally,  §  691. 

notice  of  sale  under,  how  given,  §  692. 

selling  without  notice,  penalty  attached,  § 
693. 

sales,  how  conducted,   §  694. 

who  may  not  be  purchaser  at  sale,  §  694. 

order  of  sale,  who  may  direct,  §  694. 

refusal  of  purchaser  to  pay  bid,  resale,  §  695. 

summary  proceedings  against  purchaser  re- 
fusing to  pay,  §  69'6. 

liability  of  officer,  limitation  of,  §  697. 

personal  property  capable  of  manual  delivery, 
how  delivered,  §  698. 

personal  property  not  capable,  how  delivered, 
§  699. 

real  pi-operty,  when  absolute  sale  or  not,  §  700. 

when  not,  what  certificate  should  contain,  § 
700. 

purchasers'  right,  §§  698-708. 

real  property  sold,  by  whom  may  be  redeem- 
ed, §  701. 

when  may  be  redeemed,  and  redemption  mon- 
ey, §  702. 

successive  redemptions,  when  may  be  made, 
§  703. 

notice  of  redemption  to  be  given  sheriff,  §  703. 

effect  of  redemption,  §  703. 

in  default  of  redemption,  conveyance  to  be 
made,  §  703. 


J 


INDEX.  943 

EXECUTION— Continued. 

on    redemption,    to    wliom    payments    to    be 

made,  §  704. 
redemptioner,  what  must  do  to  redeem,  §  705. 
court    may  restrain    "waste,  pending    redemp- 
tion, §  706. 
on  good  cause  sliown    injunction    may  issue, 

§745. 
rents  and  profits,  who  entitled  to,  §  707. 
eviction  after  purchase,  what  purchaser  may 

recover,   §  708. 
when  judgment  to  be  revived,  §  70S. 
petition  for  revival  of  judgment,  how  and  by 

whom  made,  §  708. 
party  who  pays   more  than    his    share,   may. 

compel  contribution,   §  700. 
debtor  of  debtor  may  pay  sheriff,  §  716. 
for  deficit  on  foreclosure,  §  726. 
proceedings  supplementary  to  execution.     See 

Supplementary  Proceedings, 
against  steamers  and  boats,  proceeds  of  sale, 

how  applied,  §  824. 
notice  of  sale  of  steamers  to  be  given,  §  827. 
stay  of,  on  appeal  to  county  court,  §  979. 
from  justice's  courts,  within  what  time  may 

issue,   §901. 
contents  of  justice's  execution,  §  902. 
may  be  renewed  in  justice's  court,  §  903. 
duty  of  officer  receiving  execution,  §  904. 
proceedings      supplementary,     provisions      of 

Code  to  apply,  §  905. 
may  issue  against  married  woman  in  forcible 

entry,  §  1164. 
what  wages    are    preferred    claims    under,  § 

1206. 
in  contempts,  §§  1209,  1210. 
return,   §683. 
act  relating  to  service  of  on  creation  of  new 

county,  p.  864. 
insolvency,   assignment    in,   effect    on,  p.  831, 

§  21. 
EXECUTOllS     AND     ADMINISTRATORS.     See 

Public    Administrators;    Special  Administra- 
tors. 
1.  Appointment,  competency,  letters.    See  Clerk, 
appointment,  §  304. 


944  INDEX. 

EXECrTOKS.  ETC.— Continued. 

corporation,  power  to  act  as,  §  1348. 

act  authorizing  corporations  to    act  as.       See 

Appendix,  Civil  Code,  title  Corporations, 
who  incompetent  to  serve  as,  §  1350. 
who  may  file  objections  to  granting  letters  to, 

§  1351.'  • 
when    colleagues    are    disqualified,  remaining 

executor,  etc.,  to  act,  §  1425. 
who  to  act  when  all  incompetent,  §  1426. 
marriage,  when    it  extinguishes    right  to  ad- 
minister,  §  1352. 
executor  of  an  executor,  disability  of,  §  1353. 
to  whom     letters     on    proved  will,  to  issue,  § 

1349. 
petition    for  letters,    clerli    must    set    day    for 

hearing,   §  1373. 
form  of  letters  testamentary,   §  1300. 
to  record  letters,  etc.,   §  1387. 
to  take  oath,  §  1387. 
letters  of  administration,   with  will  annexed, 

to  be  signed  by  cleric.  §  1361. 
how  signed  and  form  of,  §§  1360-1362. 
who    may  obtain,  order  in  which  to    grant.  § 

1365. 
not  to  issue  to  partner.  §  1365. 
preference    of    persons    equally  entitled  to,   § 

1366. 
when  granted  in  discretion  of  court,  §  1367, 
minor,  when     entitled,  to     whom     granted,   § 

1368. 
who  disqualified,  §  1369. 
not  to  issue  to  married  women,  §  1370. 
to  be  recorded,  §  1387. 
when  to  issue  on,  foreign  will,  §  1324. 
may  be  issued  on  lost  will  established,  §  1340. 
when  issued  after  final  settlement,  §  1698. 
special  letters  may  be  issued  out  of  term  time, 

§  1412. 
application  for,  how  made,  §  1371. 
application  for  may  be  granted  at  regular  or 

special  term,  §  1372. 
application  for,  notice  of  application,  §  1373. 
application  for,  contesting  application,  §  1374. 
application  for,  hearing  application,  §  1375. 
a])plication  for,  evidence  of  notice,  §  1376. 


INDEX.  945 

EXKCUTOES,  ETC.— Continued. 

application  for,  must  be  granted,  when,  §  1377. 

application  for,  proofs  required  before  grant 
of,  §  1378. 

application  for  may  be  granted  to  others  than 
those  entitled,  §  1379. 

revocation  of,  when  will  be  revolied,  §  1383. 

revocation  of,  petition  filed,  citation  to  issue. 
§  1384. 

revocation  of,  hearing  of  petition,  §  1385. 

revocation  of,  prior  rights  of  relatives,  §  1386. 

revocation  of.  revocation  on  subsequent    pro- 
bate of  will,  §  1423. 

with  will  annexed,  form  of,  §  1361. 

with  will  annexed,  when  to  issue,  §  1350. 

with   Avill   annexed,   petition  for.   when  to  be 
filed.  §  1351. 

with  will  annexed,  in  case  of  disability  of  ex- 
ecutor, §  1354. 

with    will   annexed,    authority   of   administra- 
tor with.  §  1856. 

with  will  annexed,  to  be      signed  by  clerk,  § 
1356. 

surviving  partner  to  settle  up  business,  §  1585. 

executor  may  compound,  §  1588. 

when  executor  to  sue.  §  1590. 

disposition  of  estate  recovered,  §  1591. 
Bond. 

must  appear  and  qualify,  §  1349. 

executors  and  administrators,  to  tal^e  oath  and 
file  bonds,  §  1387. 

bonds  to  be  recorded,  §  1387. 

form  and  requirements  of  bond,   §   1388. 

to  file  bonds,  §  1388. 

additional  bond,   when   required,    §  1389. 

conditions  of,   §  1390. 

each  to  give  separate  bond,  §  1391. 

successive  suits  on  bond  may  be  maintained, 
§  1392. 

sureties  must  justify  and  bonds  be  approved, 
§  1393. 

roiiuirement  of  judge  on  deficient  bond,  §  1394. 

right  ceases  on  insufficient  security,  §  1.395. 

bond,  when  may  be  dispensed  with.  §  1396. 

furtlier  bond  may  be  required,   §  1397. 

citation  to  executor  to  show  cause,  §  1398. 


946  INDEX. 

EXECUTORS,  ETC.— Continued. 

further  security  may  be  ordered,  §  1399. 
revocation  of  letters  for  neglect  to  obey  order, 

§  1400. 
suspension  of  powers  of,  §  1401. 
further   security  ordered   without  application, 

§  1402 
release  of  sureties,  §  1403. 
^     new  sureties,  order  of  release,  §  1404. 

forfeiture  of  letters  for  neglect  to    give    new 

sureties,   §  1405. 
application  to  be  determined,  when,  §  1406. 
liability  on  bond,  §  1407. 
corporation  acting  as  executor,  how  qualifies, 

§  1348. 
Removal  and  suspensions,  resignation, 
suspension  of    powers  of,   for    embezzlement, 

§  1436. 
notice  to  be  given    and     citation    to    appear, 

§  1437. 
who  may  appear  on  hearing,  §  1438. 
notice  to  absconding  executors,  etc.,  §  1439. 
court  may  compel  attendance,   §  1440. 
letters   revoked  for  failure  to  furnish   inven- 
tory, §1450. 
letters  revoked    on  will    subsequently    found, 

§  1423. 
power  of  executor  in  such  case,  §  1424. 
acts  of,  where  appointment  vacated,  §  966. 
suspension    of    powers    of    executor,    §§  1436, 

1437. 
to  be  removed  for  contempt,  §  1721. 
failure  to  file   bond,  suspension  for.    See  ante. 

Bond, 
declination  of    appointed    executor,  to  act  as 

trustee,  §  1702. 
renunciation  of  right  to  probate  by,  §  1301. 
resignation  of,  when,  §  1427. 
court  to  appoint  successor.  §  1427. 
liability  of  outgocr,  §  1427. 
Of  the  powers  and  duties  of. 
entitled  to  possession  of  all  decedent's  property, 

§  1452. 
to  take  possession  of  entire  estate,  §  1581. 
may   sue  and   be  sued   for  recovery   of  prop- 
erty, §  1582. 


INDEX.  947 

EXECUTORS,  ETC.— Continued. 

may  sue  for  embezzlement  prior  to  grant  of 

letters,   §  1458. 
may  sue  for  possession  of  estate,  §  1452. 
may  maintain  actions    for  waste,    conversion, 

and  trespass,   §  1583. 
may  be  sued  for  waste  or  trespass  of  dece- 
dent, §  1584. 
actions  on  bond  of  executor  may  be  brought 

by  another.  §  1586. 
what  executors  need  not  be  parties,  §  1587. 
may  compound  with  debtor,  §  1588. 
may    recover    property  fraudulently  disposed 

of  by  testator,  §  1589. 
disposition  of  estate  recovered,  §  1591. 
may  complete  contracts  of  sale  of  real  estate, 

§  1597. 
Allowance  and  rejection  of  claims  by. 
to  return  statement  of  claims,  §  1512. 
claim  of,  against  estate,  §  1510. 
sales  of  lands  under  mortgage  or  liens,  §  1569. 
when  may  sue  on  partnership  estate,  §  1590. 
petition    to    malie     conveyance,    and     notice, 

§  1598. 
all  acts  of,  valid  till  power  is  revolved,  §  1428. 
transcript  from  minutes  of  court  as  evidence 

of  authority  of,  §  1429. 
absence  or  minority  of  coexecutor,  effect  of, 

§  1354. 
acts  of  a  portion  of  executors,  valid,  §  1355. 
transcript  of  proceedings,  evidence  of    execu- 
tor's authority,  §  1429. 
to    return    inventory    including    homestead,  § 

1443. 
to  deliver  estate  to  heirs,  §  1453. 
may    sue    without    joining    party     interested, 

§369. 
may  sue  for  death  of  person,  §  377. 
suits   to   quiet   title   or  to   determine   adverse 

claim  may  be  brought  against,  §  1582. 
lease  of  property  of  estate,  effect  of,  §  1579. 
power  to  lease  real  estate,  §  1577. 
power  to  mortgage  real  estate,  §  1577. 
mortgage  of  property,  authority  how  obtained, 

§  1578. 


048  INDEX. 

EXECUTORS.  ETC.— Continued. 

authority  to  lease  property  of  estate,  how  ob- 
tained, §  1579. 

mortgais^e   of   property   by    executor,    effect   of 
and  liability  under,  §  1578. 
Liabilities  and  compensation  of. 

when  personally  liable,   §  1612. 

to  be  charged  with  all  estate,  ^  1613. 

not  to  profit  or  lose  by  estate,   §  1614. 

for  uncollected  debts  without  fault,    §  1615. 

compensation  of,   §  1616. 

not  to  purchase  claims  against,  §  1617. 

commissions  alloAved  to.  §  1618. 

effect  of  judgment  against,   §  1504, 

corporation  acting  as  executor,  liability  of  of- 
ficers,   §1348. 
Accounting  and  settlements  by. 

to  render  exhibit,  when.   §  1622. 

citation  to  account,  §  1623. 

petition  for  citation  to  render  account,  §  1624. 

citation  to  account  on  application,  §  1625. 

objections  to  account,  who  may  file,  §  1626. 

attachment  for  disobeying  citation.   §  1627. 

to    render    accounts    at    expiration  of    term,  § 
1628. 

to  account  after  authority  revoked,  §  1629. 

revocation  of    letters  for    neglect    to    account,. 
§  1630. 

to  produce  and  file  vouchers,  §  1631, 

vouchers,  when  need  not  be  produced,   §1632. 

appointment     of    dav    of    settlement,    notice  j 
thereof,  §  1633. 

final  settlement,  partition  and  distribution  may] 
be  simultaneous.  §  1634. 

who  may  file  exceptions  to  account,   §  1635. 

what    matters    may    be   contested    by  heirs.  ^\ 
1636. 

postponement  of  hearing  in  contest  of  account, 
§  1637. 

settlement  of  accounts,  when,   and  when  not 
conclusive.  §  1637. 

l)roof  of  notice  must    be  made    before    settU 
ment.    §16.38. 

funds  pending  settlement,  §  1640. 

personal  liability  of.  after  decree  for  paymei 
of  debts.  §  1649. 


INDEX.  949 

p:XECrTOKS,  etc.— Coutiuued. 

liability  for  failure  to  give  notice  for  presenta- 
tion of  claim,   §  1650. 
final  account,  when  to  be  made,  §  1652. 
neglect  to  render  final  account,  how  treated, 

§  1653. 
final  settlement,  decree  and  discharge,  §  1697. 
costs  allowed  in  actions  by  and  against,  §  1931. 
on  appeal,  security  may  be  limited  or  modified, 

§946. 
appointment  of  day  for  settlement,  §  1633. 
settlement  of  account,  notice  of,  §  1633. 
EXEMPTION,   property  exempt  from   execution, 

§690. 
from  jury  duty,  who  are  exempt.  §  200. 
setting    apart  exempt    property    to    insolvent 

debtor,  p.  852.  §64. 
money  paid  under  insurance  policy.    See  Civil 

Code.  p.  782,  §  8. 
EXONEPvATION.  of  bail.    See  Arrest  and  Bail. 
EXPERTS— skilled    persons  may    decipher    char- 
acters. §  1863. 
facts  which  may  be  proved  on  trial  by,  §  1870. 
may    prove    unwritten    law    of    sister    State, 

§  1902. 

See  Evidence. 
EXTENSION,  of  time,  §  1054. 
FACTS,  to  be  stated  in  complaint  §  426. 

insufficiency  of.  ground  for  demurrer,  §  430. 
special   issues   not    made    by  pleadings,    how 

tried,   §309. 
degree    of    certainty    required    to    establish,  § 

1826. 
what  facts  may  be  proved  on  trial.  §  1870. 
issue  of.  how  it  arises.  §  590. 
how  tried.  §  592. 
findings  of,  §§  633.  634. 
aa'reement  on,   on  submission   of  controversy, 

§1138. 
of  which  court  will  take  judicial  notice.  §  1875. 
jury  as  judges  of,  §  2101. 
FAIIMP'K.   property   of.   exempt   from   execution, 

§  690. 
FATHER,  may  sue    for    seduction    of    daughter, 

§375. 

Code  Civ.  Proc— 80. 


950  INDEX. 

FATHER— Continued. 

may  sue  for  deatli  or  in.iury  of  child,  §  376. 

injury  action  by  for,  §  376. 

rank,  in  order  of  persons  entitled  to  adminis- 
ter,   §1365. 

entitled  to  guardianship  of  minor,  §  1751. 
FEES,  officers  entitled  to,  §  91. 

of  court  commissioners,   §  259. 

of   official   reporter,    §  274. 

tender  of,  to  be  made  to  witness,  §  1987. 

of  attorney,  how  to  be  paid,  §  1021. 

of  referees,    §  1028. 

on  recording  mechanics'  lien,  §  1189. 

of  witnesses,  §  1987. 
See  Costs;  also  Appendix   to    Political    Code, 
title  Fees. 
FEMININE,  included  in  masculine,  §  17. 
FICTITIOUS    NAME,    party    may    be    sued    by, 
§474. 

ignorance  of  real  name  to  be  stated  in  com- 
plaint, §  474. 
FINDINGS,  referees  to  report  within  twenty  days, 
§643. 

effect  of  findings  of  referees,  §  644. 

of  referee,  may  be  excepted  to,  §  645. 

of  fact,  how  waived,  §  634. 

must    be  in    writing  and    filed    within  thirty 
days,  §633. 

of  fact  and  conclusions  of  law,  must  be  sepa- 
rately stated,   §633. 

how  prepared,  §  635. 

practice  and  proceedings  on,  §  635. 

on  counter-claim,  §  626. 

on  claim  and  delivery,  §  627. 

general  and  special  defined,  §  624. 

when  general  or  special  may  be  given,  §  625. 

errors  in,  setting  aside  judgment  for,  §  663. 

conclusions  of  law  not  supported  by  findings 
of  fact,  setting  aside  judgment  for,   §  663. 

notice  of  motion  to  set  aside  judgment  for  er- 
rors in  and  hearing  of,  §  663V^. 
P^INES,  for  neglect  of  juror  to  appear,   §  238. 

may  be  imposed  on  usurpation  of  office,  §  809. 

actions  for,  in  police  courts,  §  932. 


INDEX.  951 

FINES— Continued. 

imposed  for  nej?lect  to  obey  mandate,  §  1097. 

imposed  for  contempts,  §  1218. 

imposed  on  State  officers,  how  enforced,  §  1097. 
See  Forfeiture;    Penalty. 
FIRE   DEP.^RTMENTS,    municipality   liable   for 

damage  by,  §  390. 
FIRE  ENGINES,  exempt  from  execution,  §690. 
FORCIBLE  EN'xRY,  ETC.,  answer,  §  1170. 

answer,  verifying-,   §  1175. 

appeal,  §  1178. 

appeal,  stay  of  proceedings,  §  1176. 

appearance,  §  1170. 

arrest,  order  for,  §  1168. 

complaint,   §  1166. 

complaint,  amendment  of.  §  1173. 

complaint,  description  of  premises  in,  §  1166. 

complaint,  verifying,  §  1175. 

continuance  in  cases  of,  §  1173. 

damao^es,  tr  -ble,  §§  735,  1174. 

default,  .iud-'-ment  by,   §  1169. 

defendant,  parties,  §  1164. 

demurrer  to  complaint,   §  1170. 

forcible  detainer  defined,  §  1160. 

forcible  entry  defined,  §  1159. 

forfeiture  relieving  against,  §  1179. 

generally,  §§  1159-1179. 

holding  over,  tenants,   §  1161. 

judgment  by  default,  §  1169. 

judgment  generally,  §  1173. 

jurisdiction  in  cases  of,  §§  76,  113. 

jury  trial  of  issues  of  fact,  §  1171. 

justices'  court,  jurisdiction  in  cases  of.   §  113. 

landlord  and  tenant,  notices,  §§  1161,  1162. 

landlord  and  tenant,  notice  by  landlord,  §  1161. 

new  trial,  §  1178. 

parties  generally,  §§  1164,  1165. 

practice,  etc.,  §  1177. 

summons,  alias  in  lien  proceedings,   §  1167. 

summons,  form,  etc.,  §  1167. 

summons  issuing,  returnable,  §  1166. 

summons,  service,  etc.,  8  1167. 

supreme  court,   jurisdiction   in  cases  of,   §  52. 

trial,  defendant's  case,  §  1172. 

trial,    jury,    §  1171. 


952  INDEX. 

FORCIBLE  ENTRY— Continued. 

trial,  plaintiff's  case,  §  1172. 

unlawful  detainer  defined,   §  1161. 

verdict,    §  1174. 

verification.  §  1175. 
FORECLOSURE,  action,  one  only,  §  726. 

deceased  mortaaiior,  §§  1569,  1570. 

due,  debt  not  all,  §  728. 

estate  of  deceased  ])erson,  §§  1493,  1500. 

exclusive  remedy,  §  726. 

execution   on,    §  681. 

fees  of  attorney,   court  to  fix   irrespective  of 
contract,  p.  863,  Stat. 

fixtures,    §  745. 

generally,  §§  726-728. 

injunction,  §  745. 

installments,  etc.,  §  728. 

intervention,  §  887. 

lis  pendens,   S  409. 

place  of  trial,  §392. 

pleading,  writings,  §§  447-449. 

possession,  mortgagee  in,  §  744. 

commissioner,  report  of  sale  by,  §  729. 

commissioner,  sale  by,  manner  of,  §  726. 

commissioner,   fees   of  court,    §  729. 

court  commissioner,  oath  and  undertaking  by 
on  sale  under,  §  729. 

elisor,  appointing  to  execute  deed  on  death  of 
court  commissioner,  §  726. 

receiver,    §  564. 

several  mortgages  or  debts,  §  728. 

surplus,  after  sale,  §  727. 

tender,    §  997. 

waste,  §§  744,  745. 
I'OREIGN    RESIDENT,    summons,    how    served 
on,    §412. 

See  Absentee. 
FOREIGN  WILL,  proceedings  in  probate  of,   §§ 
1322-1324. 

See  Wills. 
FORFEITURE,   limitation   of  action   for,    §340. 

place  of  trial  in  actions  for,  §  393. 

on  sale  under  execution,  without  notice,  §  693. 

liability  of  sheriff,    §  697. 

of  lease,  relief  against,  §  1179. 


INDEX.  953 

FRANCHISE,    actions   for  usurpation   of,    §§802- 
809. 

See  Usurpation  of  Office. 
FRAUD.    See  Arrest  and  Bail. 

a  ground  for  arrest,  §  479. 
FRACDS.    See  Statute  of. 

FRAUDULENT  CONVEYANCES,  fraudulent  con- 
vevances   made,    and   preferences,    by   insol- 
vent, eriect  of,  p.  850,  §  59. 
FRESNO  COUN'ii  acts  increasing  and  reducing 

superior  judges  of,  p.  802. 
FURNITURE,  exempt  from  execution,  §  690. 
FUTURE  included  in  present  tense,  §  17. 
GARNISHEE,  citation  to  issue  to,  §  545. 
memorandum  to  be  furnished  by,  §  546. 
when  liable  to  plaintiff,   §  544. 
to  be  served  with  notice  of  attachment,  §  543. 
property,  how  attached  in  hands  of,  §  542. 
See  Attachment. 
GARNISHMENT.    See  Attachment. 
GOLD    COIN,  legal    tender    notes    receivable  as, 

§667. 
GOLD  DUST,  return  on  execution,  §  688. 

See  Judgment. 
GOVERNOR,  to  appoint,  in  case  of  absence  or  in- 
capacity of  judge,   §  160. 
may  require  superior  judge  to  hold  court,  §  160. 
GRADING.    See  Liens,  Enforcement  of. 
GRAND  JURi,  defined,  §  192. 
ballot-box,  §209. 
drawing,    §§214-220. 
when  to  be  impaneled,  §  241. 
how  constituted,   §  242. 
panel,   how  filled,    §  242. 

proceedings  regulated  by  Penal  Code,  §  243. 
GROWING  TIMBER,  action  for  trespass  for  cut- 
ting,  §733. 
GUARDIAN,  ad  litem,  of  infant,  to  api.)ear  in  ac- 
tions, §  372. 
how  appointed,  §  373. 
how  appointed  in  justices'  courts,  §  843. 
power  of  court,  how  affected  by  Probate  Act, 
§  1759. 
GUARDIAN  AND  WARD,  appointment  of  guar- 
dian, how  provided  for,  §  304. 


954  INDEX. 

GUARDIAN  AND  WARD— Continued. 

general,  to  appear  for  infant,  §  372, 

ad  litem,  in  actions,   §  372. 

ad  litem,  how  appointed,"  §  373. 

of  insane  person,  in  partition,  §  794. 

in  justices'  court  cases,  §  843. 
Guardians  of  minors. 

service  of  process  on,  for  removing  executor, 
§  1722. 

superior  court  to  appoint,  when,  §  1747. 

petition  for  appointment,  §  1747. 

minor   may   nominate,    when,    and   when   not, 
§  1748. 

power  of  judge  at  chambers,  §§  167,  1808. 

when  appointment  made  hy  court,  §  1749. 

nomination  by  minor  after  fourteen,   §  1750. 

father    and    mother    entitled    to    appointment, 
when,   §  1751. 

appointee  of  minor  over  fourteen,  right  to  act 
as  guardian,  §  1751. 

minor  having  no  father  nor  mother,   §  1752. 

powers  and  duties  of,   §  1753. 

bond  of  guardian,  §  1754. 

letters  of,  form,  and  when  to  issue,  §  1754. 

order  appointing,  conditions  may  be  inserted 
in,  §  1755. 

letters  of,  and  bond  to  be  recorded,  §  1766. 

maintenance     of     minor,    how    provided    for, 
§  1757. 

testamentary  guardian  to  give  bond,  §  1758. 

powers     of     testamentary     guardian     limited, 
§  1758. 

powers  of  court  as  to  appointment  of  guard- 
ians ad  litem,  how  affected,  §  1759. 
Guardians  of  insane  and  incompetent  persons. 

verified  petition,  what  to  contain,  §  1763. 

appointment  after  hearing,  when  will  be  made, 
§17B4. 

powers  and  duties  of.  §  1765. 

proceeding     for    restoration    of    insane,    etc., 
§  1766. 

definition  of    incompetent,  mentally    incompe- 
tent, incapable,  §  1767. 
Powers  and  duties  of  guardians. 

to  pay    debts  of    ward  out  of    ward's    estate, 
§  1768. 


INDEX.  955 

GUAKDIAN  AND  WARD— Continued. 
Powers  and     duties     of     snardians— to    recover 
debts  due  ward  and  represent  him,  §  1769 
to  manage  ward's  estate,  §  1770. 
to  maintain  ward,  §  1770. 
to  sell  real  estate,  §  1770. 
maintenance  of  ward,  liow  enforced,  §  1771. 
may  join  in  assent  to  partition,  §  1772. 
must    return    inventory    of    ward's    estate,   § 

1773. 
appraisers  to  be  appointed,  §  1773. 
proceedings,   on   after  discovered   or  acquired 

property,  §  1773. 
must    make    annual    and    other    settlements, 

§  1774. 
allowance    of     accounts    of    joint    guardians, 

§  1775. 
expenses  and  compensation  of,  §  1776. 
territorial  limits  of  authority,  §  1913. 
power  of  guardian  to  mortgage  realty.  §  1577. 
power  of  guardian  to  lease  realty,  §  1577. 
corporation    acting    as    guardian,  powers  and 

duties,  §  1348. 
Sale  of  property  and  disposition  of  proceeds, 
may  sell  property  in  certain  cases,  §  1777. 
sale   of  real   estate   to   be   made   on   order   of 

court,  §  177S. 
application  of  proceeds  of  sale,  §  1779. 
proceeds,  how  to  be  invested,  §  1780. 
order  of  sale,  how  obtained,  §  1781. 
notice  to  next  of  kin,  how  given.  §  1782. 
copy  of  order  to  be  served,  or  published,  §  1783. 
on  written  consent,  notice  need  not  be  given, 

§  1783. 
hearing  of  application.   §  1784. 
who  may  be  examined  on  hearing,   §  1785. 
costs,  to  whom  to  be  awarded,  §  1786. 
order  of  sale,  what  to  specify,  §  1787. 
bond  to   be   given   before  selling  real   estate, 

§  1788. 
proceedings  to  conform  to  provisions  relating 

to  estates  of  deceased  persons,  §  1789. 
order  of  sale,  limitation  to,   §  1790. 
conditions   of  sale,    of  estate   of   minor  heirs, 

§  1791. 


956  INDEX. 

GUARDIAN  AND  WARD— Contiuiied. 

bond  and  mortg:age  to  be  given  for  deferred 
payments,  §  1791. 

court  may  order  investment  of  money,  §  1792. 
Nonresident  guardians  and  wards. 

guardians  of  nonresident  persons,   §  1793. 

powers  and  duties  of,  §  1794. 

to  give  bonds,  §  1795. 

to  what  guardianship  to  extend,  §  1796. 

removal  of  nonresident  ward's  property,  §  1797. 

notice,   and  proceedings  on  removal,   §  1798. 

order  of  removal  to  be  made,  §  1798. 

discharge  of  person  in  possession,  §  1799. 

embezzlement  by,  §  1800. 
General  and  miscellaneous  provisions. 

examination  of  person  suspected  of  defrauding 
ward,  §  1800. 

or  of  concealing  ward's  property,  §  1800. 

removal  and  resignation  of  guardian,  §  1801. 

surrender  of  estate,  §  1801. 

guardianship  how  terminated,   §  1802. 

new  bond  when  required,  §  1803. 

bond  to  be  filed,  action  on,  §  1804. 

limitation  of  action  on  guardian's  bond,  §  1805. 

limitation  for  recovery  of  property  sold,  §  1806. 

more  than  one  guardian  may  be  appointed,  § 
1807. 

order  appointing  guardian,  how  entered,  §  1808. 

undertakings,  requisites  of,  §  1809. 
HABEAS  COivPUS,  superior,  jurisdiction,   §  76. 

supreme  court,  jurisdiction,  §§  51,  54. 
HANDWRITING,  comparisons,  how,  §  1945. 

how  proved,    §§  1943-1945. 

of  decedent,  entries,  §  1946. 

proof  of  on  probate  of  will,  §  1315. 
HEARSAY.    See  Evidence,   §  1845. 
HEIRSHIP.    See  Estate  of  Deceased  Persons. 

claim  of,  procedure,  §  1664. 
HIGHWAY,  trespass  on,  damages  for,  §§  733,  734. 
HOLIDAYS,  generally,   §§  10-13. 

nonjudicial  days,   §  1.34. 

powers  of  courts,  §  134. 
HOMESTEAD,  setting  apart  to  survivor,  §§  1474, 
1486. 


INDEX.  957 

f  HOMESTEAD -Con riniied. 

setting  apart  of  homestead  to  insolvent  debtor, 

p.  852,  §  64. 
death     decreeins:    title    in    surviving:    spouse, 
§  1723. 

See  Estates  of  Deceased  Persons. 
HOUSEHOLDER,  propertv  of,  exempt  from  exe- 
cution.   §  690. 
Hl'MBOLDT  COUNTY,  act  providing  additional 
Judge  in.  p.  804. 
caus3  of  challenge  in  justice  court  in,  p.  860, 
Stat. 
HISBAND,   not   liable  for  debts  of  sole  trader, 
§  1821. 
when  not  to  be  vritness  against  Avife,   §  1881. 
when,  must  testify,  §  1882. 
Avhen  to  be  joined  with  wife  as  party.  §  370. 
community  property,  death  of  one  spouse,  title 
decreed  to  be  in  other  when.  §  1728. 
IMMATERIAL  errors  may  be  disregarded,  §  475. 
IMPEACHMENT,  court    for    trial    of,  how  com- 
posed, §  36. 
jurisdiction   of,    §  36. 
officers  of  court,  §  37. 
trinl.  provided  for  in  Penal  Code,  §  38. 
UNIPRISONMENT,  effect  of,  on  limitatiou  of  ac- 
tions, §352. 
of  judgment  debtor,  when  may  be,  §  715. 
for  contempt  of  court,  §  1219. 
for  disobedience  of  mandate.   §  1097. 
See  Arrest  and  Bail. 
IMPROVEMENTS,   value    of,   when    allowed   as 
set-off,  §  741. 
estimation  of    value  of,   in    eminent    domain, 

§  1248. 
when  not  assessed  in  eminent  domain,  §  1249. 
INADVERTENCE,   relief    from    by    amendment, 

§  473. 
INCONSISTENT  STATUTES,  Code  repeals,  §  18. 
INDE^NINTTY,   action  against  sheriff,   §  1055. 
INDICTMENTS,  appellate  jurisdiction  in  cases  of, 

§52. 
INDIRECT  EVIDENCE,  defined,  §  1832. 
See  Evidence. 


958  INDEX. 


INDISPENSABLE  EVIDENCE,   defined,   §1836. 

See  Evidence. 
INFANT,  to  appear  by  guardian,  §  372. 

effect  of  infancy,  on  limitation  of  actions,   §§ 

328,   352. 
summons,  bow  served  on,  §  411. 
one  year  after  removal  of  disability  given  to 

infant  to  contest  probate  of  will,  §  1333. 
letters    of     administration     durante      minore 

aetate,   §  1354. 
sbare  of,  on  partition,  to  be  paid  to  guardian, 

§793. 
sbare  of,  on  partition,  securities  may  be  taken. 

§  777. 
effect  of    infancy,  on    claim  to    escheated    es- 
tates, §  1272. 
who  entitled  to  guardianship  of,   §  1751. 
distribution   of    interest   in    estate  of    infant 

without  guardian  to  treasurer,  §  1703^2- 
INFERENCE,  defined,  §  1958. 
founded  on  what,   §  1960. 
INJUNCTION,  abortive,  §  532  n. 

answer,  after,  only  on  notice,  §  528. 
corporation,  suspending  business  of,  by,  §  531. 
court  commissioner  cannot  issue,  §  259. 
court  or  judge  or  county  .judge  may  grant,  § 

525. 
definition  of.  §  525. 
dissolving,  §§  532,  .5.33. 
execution,   after,   waste,   §  745. 
foreclosure,  during,  waste,  §  745. 
generally,  §§  525-533. 
holidays,  writ  may  be  served  on,  §  76. 
judge   may   grant,    §  525. 
limitation  not  to  run  when  action  stayed  by, 

§356. 
order  for,  when  made,  §§  526,  527. 
order  to  show  cause,  §  530. 
restraining  order,  §  530. 
Sunday,  writ  may  be  served  on,  §  76. 
undertalving.  justification,  etc.,  §  529. 
vacating,   §§  532,   533. 
waste   during  foreclosure   or   after  execution, 

§  745. 


INDEX.  959 

IN.TIWCTION— Continued. 

water,  enjoining  diversion,  damages  for,  §  532. 

venue  of  action  where  injunction  prayed,  §  392. 

duration  of,  where  granted  prior  to  trial,  §  527. 

conclusiveness  of    judgment    against    sureties 
on  bond,  §  532. 

water,  proceedings  on  petition  for  injunction 
to  restrain  diversion  of,  §  532. 
INJURIES,  civil  action  arises  from,  §  25. 

kinds  of,  enumerated,  §  27. 

to  property,  defined,  §  28. 

to  person,  defined,  §  29. 

child,  father,  mother,  or  guardian  may  sue  for, 
§376. 

action  for  death  or,  §  377. 

claims  for,  may  be  united,  §  427. 

place  of  trial  in  actions  for,  §§  395,  832. 

liability  of  steamers  and  vessels  for,  §  813. 

liability,  on  entry  for  survey  of  land,  §  743. 

liability  for,  after  sale  on  execution,  §  746. 
INQUEST,  jury  of,  what,   §  195. 
impaneling  ju'-y  of,   §  254. 
INSANE  PERSONS,  guardian  ad  litem,  §  372. 

definition   of   incompetent,    mentally   incompe- 
tent, incapable,  §  1767. 

when  guardian  may  be  appointed  for,   §  1763. 

appointment  of,  on  hearing,  §  1764. 

powers  and  duties  of  guardians  of,  §  1765. 

proceedings  for  restoration  of,  §  1766. 

guardians   to   recover   share   of,    on   partition, 
§  794. 

may  consent  to  partition  and  execute  release, 
§  795. 

service  of  summons  on,  how  made,  §  411. 

cannot  be  witnesses,  §  1880. 
See  Insanity. 
INSANITY,  effect    of,  on    limitation    of    actions, 
§352. 

effect  of  on  claim  to  escheated  estates,  §  1272. 

power  of  guardian  of  incompetent  to  mortgage 
or  lease  realty,  §  1577. 

distribution  of  interest  in  estate  of  incompe- 
tent to  treasurer,  §  1703^2- 

See  Insane  Persons. 


960  INDEX. 

INSOLVENCY, 

1.  Generally. 

contempt,  laws  relating  to,  applicable  in  in- 
solvency proceedings,  p.  854,  §  68. 

general  subject  of  act,  p.  818,  §  1. 

death  of  debtor  after  order  of  adjudication,  ef- 
fect of,  p.  852,  §  61. 

words  in  singular  include  plural  and  vice 
versa,  p.  853,   §  66. 

Insolvent  act  of  1880,  repeal  of,  not  to  affect 
existing  proceedings,  p.  856,  §  72. 

insolvent  act  of  1880,  repealed,  p.  856,  §  72. 

how  cited,  p.  818,  §  1. 

commencement  of  proceedings,  what  deemed 
to  be,  p.  853,   §65. 

act  of  insolvency,  filing  of  petition  is,  p.  818, 
§2. 

2.  Voluntary. 

who  may  petition,  p.  818,  §  2. 

filing  of  petition  is  act  of  insolvency,  p.  818, 

§2. 
petition  what  to  state,  p.  818,  §  2. 
petition,  verification  of,  p.  819,  §  5. 
adjudication  of  insolvency,  order  of,  pp.  818. 

819.  §§  2,  5. 

adjudication  of  insolvency,  publication  of  or- 
der of,  p.  820,  §  6;  p.  821,  §  7. 
adjudication    of    insolvency,   service  on  qv(^'^ 

itors,  p.  821,   §  7. 
adjudication  of  insolvency,  cost  of  publication 

and  service,  p.  821,  §  7. 
schedule  and  inventory,  what  to  contain,  p.  810, 

§§  3,  4. 
schedule  and  inventorv,  verification  of.  p.  Sl!». 

§5. 
order  directing  sheriff  to  take  possession  of  es;- 

tate,  p.  820,  §6. 
appointing    time    and    place    for    meeting  of 

creditors,  p.  820,  §  6. 
assignee,  appointment  of  time  for  election  of. 

p.  820,  §  6. 
staying  of    proceedings    against  insolvent,   p. 

820,  §  6. 

assignee   or  receiver,   delivery  of  property   to 

by  sheriff,  p.  820,  §6. 
assignee,  right  to  vote  at  election  of.  p.  822.  *  S. 


INDEX.  931 

INSOL\'ENX'Y— Continued. 

claims,  how  established,  p.  822.  §  8. 

claims,  verification  of,  p.  822,  §  8. 

claims,  exceptions  to,  p.  822,  §  8. 

claims,  exceptions  to,  decision  of  court  on,  not 

conclusive,  p.  822,   §8. 
assignee,  holder  of  secured  claim,  rights  of  as 

to  voting  for,  p.  822,  §  8. 
sheriff,  compensation  of,  p.  820,  §  6, 
3.  Involuntai-y. 
petition  in,  what  to  state,  p.  823,  §  9. 
petition  in,  verification  of,  p.  823,  §  9. 
petition,  service  of,  p.  825,  §  11. 
adjudication  of  insolvency,   made  on  petition 

of  five  creditors  when,  p.  823,  §  9. 
petition,  amendment  of,  p.  823,  §  9. 
answer  must  be  specific  and  verified,  p.  826, 

§12. 
trial  by  jury  on  issues  raised  by  petition  and 

answer,  p.  826,  §  12. 
petition,  grounds  of  demurrer  to,  p.  826,  §  12. 
trial  of  issues  on  petition  and  answer,  p.  828, 

§15. 
bond  accompanying  petition,  p.  823,  §  9. 
order  to  show  cause,  failure    of    service,  pro- 
ceedings on,  p.  825,  §  11. 
order  to  show  cause  why  debtor  should  not  be 

made  and  service  of,  p.  825,  §§  10,  11. 
order  to  show  cause,  service  of,  p.  827,  §  14. 
publication  of  order  to  show  cause,  p.  827.  § 

14. 
order  to  show  cause,  when  may  be  served  by 

publication,   p.  825,   §  11. 
costs  of  publication  and     service,     depositing 

with  clerk,  p.  827,  §  14. 
adjudication  of  insolvency,  p.  826,  §  13. 
forbidding  payment  of  debts,  p.  826,  §  13. 
staying  proceedings     against     debtor,     p.  826, 

§13. 
forbidding    delivery   or  transfer   of    property, 

p.  826,  §  13. 
ordering  property  taken  into  custody  by  sher- 
iff, to  be  sold,  p.  830,  §  18. 
order    forbidding    payment  of    debts,   p.   825, 

§10. 

Code  Civ.   Proc— 81. 


962  INDEX. 

INSOLVENCY— Continued. 

order  forbidding  delivery  or  transfer  of  prop- 
erty, p.  825,  §  10. 

filing  schedu'e  and  inventory,  p.  826,  §  13. 

appointing  time  and  place  of  meeting  of  cred- 
itors, p.  826,  §13. 

time  and  place  of  meeting  of  creditors,  no- 
tice of,  p.  827,  §  14. 

publication  of  order  fixing  time  and  place  of 
meeting  of  creditors,  p.  826,  §  13. 

assignee,  time  of  election  of,  p.  826,  §  13. 

ordering  sheriff  to  talie  possession  of  property 
and  boolvs,  p.  826,   §  13. 

delivery  of  property  by  sheriff  to  receiver  or 
assignee,  p.  826,  §  13. 

schedule  and  inventory,  affidavit  to,  p.  826,  § 
13. 

inventory  of  property  taken  by  sheriff  where 
service  cannot  be  had,  p.  828,   §  16. 

schedule,  where  debtor  cannot  be  found,  p. 
828,    §16. 

custody  of  property,  where  sheriff  cannot  be 
found,  p.  828,  §§  16,  17. 

bonds  where  sheriff  takes  property  where 
debtor  cannot  be  found,  pp.  828,  829,  §§  16, 
17. 

sheriff,  compensation  of,  p.  826,   §  13. 

appeal  from  decision  of  court,  bond  on,  p.  829, 
§17. 

dismissal  of  proceedings,  damages  on,  p.  829, 
§17. 

dismissal    of    proceedings    and    costs,  p.  828, 
§15. 
4.    Effect  of  Proceedings. 

judgment  and  execution,  effect  of  assignment 
in  insolvency  on,  p.  831,  §  21. 

attachment  l.evied  within  thirty  days  is  dis- 
solved by  assignment  in,  p.  831,  §  21. 

actions  against  insolvent  not  stayed  where 
amount  in  dispute  uncertain,  p.  844,  §  49. 

actions  against  insolvent  stayed  pending  pro- 
ceedings, p.  844,  §  49. 

actions  against  insolvent  continued  to  fix  lia- 
bility of  sureties,  p.  844,  §  49. 

statute  of  limitations  does  not  run  pending 
proceedings,   p.  852,   §  62. 


INDEX.  963 

INSOLVENCY— Continued. 

5.  Books. 

debtor  must  deliver  books,    accounts,   vouch- 
ers, etc.,  to  court,  p.  835,  §  20. 

6.  Receivers. 

receiver,  appointment   of   before    appointment 

of  assignee,  compensation  of,  p.  853,   §  67. 
receiver  may  be  appointed  before  appointment 

assignee,  p.  853,  §  67. 
receiver,  manner  of  appointment,  p.  853,  §  67. 
receiver,  duty  of  on  appointment  of  assignee, 

p.  853,  §  67. 
f.  Assignees. 
election  of,  p.  831,  §  19. 
majority  in  amount    of  claims    elects,  p.  831, 

§19. 
clerk  to  keep  record  of  proceedings  on  election 

of,  p.  831,  §  19. 
bond  of,  p.  831,  §  19. 
bond   of,    extent  of    liability    under,     p.    831, 

§  19,  p.  833,  §  24. 
court  to  appoint,  when,  p.  831,  §  20. 
duty  to  record  in  counties  where  debtor  has 

land,   p.   833,   §23. 
revocation  of  appointment,  p.  833,  §  24. 
right  to  resign,  p.  833,  §  24. 
assignment  of  property  to,  p.  8.^1,  §  21. 
delivery  of  books,  accounts,  vouchers,  etc.,  to, 

p.  835,  §  27. 
must  file  and  serve  schedule    and    inventory 

when,  p.  833,   §  23. 
penalties   on   behalf    of,   for    concealment    of 

property,  p.  835,  §  28. 
must  convert  estate  into  money,  p.  836,  §  29. 
powers  of,   p.  833,   §  25. 
title  of  and  relation  of,  p.  831,  §  21. 
private  sale  by,  p.  836,  §29. 
right  of  action  of,  p.  832,  §  22. 
action  by,  setoff  or  counterclaim    in,    p.  833, 

§  25,  subd.  1. 
rights  of  action  for  damages  may  be  compro- 
mised when,  p.  836,  §  31. 
must  keep  accounts,  p.  837,  §  33. 
time  of  exhibiting  account,  p.  837,  §  33. 


964  INDEX. 

INSOLVENCY-Continued. 

account  of,   exceptions  to  and  contest  of,   p. 

837,  §33. 
account,  affidavit  as  to  notice  of  hearing,  p. 

837,  §33. 

account  of,  notice  of  hearing  of,  p.  837,  §  33. 
account,  ordering  upon  motion  of  creditors,  p. 

838,  §  34. 

final  account,  exceptions  to  and  contest  of,  p. 

839,  §38. 

account,  failure  to  file,  discharge  for,  p.  839, 
§37. 

discharge  of  for  failure  to  render  account  or 
pay  dividend,  p.  839,  §37. 

hearing  of  final  account  and  discharge  of  as- 
signee, p.  839,   §38. 

final  account  of,  notice  of  hearing  and  settle- 
ment of,  p.  839,  §  38. 

to  he  allowed  necessary  expenses,  p.  836,  §  32. 

commissions  of,  p.  836,  §  32. 

8.  Preferences. 

fraudulent  preferences    and    transfers,   effect 

of,  p.  850,  §  59. 
person  accepting  cannot    prove    claim,  p.  845, 

§50. 

9.  Claims. 

person  accepting  preference  cannot  prove 
claim,  p.  850,  §  59. 

creditor  may  act  by  attorney  or  agent,  p.  852, 
§63. 

all  debts  may  be  proved,  p.  842,  §  41. 

all  claims  for  chattels  wrongfully  withheld 
may  be  proved,  p.  842,  §  42. 

rent  and  debts  falling  due  at  fixed  and  stated 
periods,  p.  843,  §  46. 

contingent  debts,  proof  of,  p.  842,  §  44. 

mutual  debts  and  credits,  p.  843,  §  47. 

setoff  or  counterclaim  purchased  after  filing 
of  petition  allowed,  p.  843,  §  47. 

setoff  or  counterclaim  not  provable  not  al- 
lowed, p.  843.  §  47. 

setoff  or  counterclaim,  purchaser  by  debtor  af- 
ter petition  filed  allowed,  p.  843.  §  47. 

subsequently  proved,  right  of  claimants  to 
dividends,  p.  838,   §  36. 


INDEX.  965 

INSOLVENCY-Coutinued. 

person  liable  as  bail,  surety,  or  guarantor  of 
debtor,  rights  of,  p.  838,  §  35. 

claim  as  indorser,  surety,  bail,  or  guarantor, 
which  has  not  become  absolute,  p.  842,  §  43. 

claim  as  bail,  surety,  or  guarantor,  where  lia- 
bility absolute  but  not  paid,  p.  843,  §  45. 

claim  as  bail,  surety,  guarantor,  making  pay- 
ment after  proceedings  instituted,  p.  843, 
§45. 

holders  of  secured  claims,  rights  of,  p.  843, 
§48. 

proving  fictitious  debts  a  misdemeanor,  p.  851, 
§60. 

ordering  claims  for  damages  to  be  tried,  p. 
842,  §42. 

debtor  proving  claim,  effect  as  w^aiver  of  right 
of  action,  p.  844,  §  49. 

lien  not  affected  by  proving  claim,  p.  844,  §  49. 

proceedings  instituted  are  discharged  by  prov- 
ing claim,  p.  844,  §  49. 

10.  Disposing  of  property— homesteads  and    ex- 
emptions. 

court  may  sell  part  of  property  when,  p.  836, 
§30. 

court  may  order  sale  of  perishable,  etc.,  prop- 
erty, when,  p.  836,  §  30. 

outstanding  debts  and  obligations  may  be  sold 
when,    p.    836,    §  31. 

exempt  property,  setting  apart,  p.  852,  §  64. 

homestead,  setting  apart,  p.  852,  §  64. 

11.  Partnerships. 

debtor  includes  partnerships  and  corporations, 
p.  853,  §66. 

may  be  adjudged  insolvent,  p.  839,  §  39. 

petition  in  insolvency,  p.  839,  §  39. 

jurisdiction  of  court  where  partners  reside  in 
different  counties,  p.  839,   §  39. 

joint  and  separate  property,  distribution  of,  p. 
839,  §  39. 

insolvency  of,  discharge  of  partners,  p.  839, 
§39. 

proceedings  in  insolvency  by  or  against  sur- 
viving partners,  p.  839,  §  39. 

proceedings  on  insolvency  of,  p.  839,  §  39. 


966  INDEX. 

INSOLVENCY— Continued. 

petition  by  part  of  partners,  proceedings  on, 
p.  83&,  §39. 

12.  Corporations. 

debtor  includes  partnerships  and  corpora- 
tions, p.  853,  §  66. 

provisions  of  insolvent  act  apply  to,  p.  841, 
§40. 

insolvency  of,  proceedings  on,  p.  841,  §  40. 

petition  in  insolvency  by,  p.  841,  §  40. 

discharge  not  granted  to,  p.  841,  §  40. 

penalty  for  fraudulent  conveyances,  p.  841, 
§40. 

13.  Dividends, 
declaring,  p.  837,  §  33. 

discharge  of  assignee  for  failure  to  pay,  p. 
839,  §37. 

final  on  settlement  of  final  account  and  dis- 
charge of  assignee,  p.  839,  §  38. 

person  liable  as  bail,  surety,  or  guarantor  of 
debtor,  rights  of,  p.  838,   §  35. 

creditors  to  share  property  pro  rata,  p.  838, 
§35. 

subsequent  claimants,  right  of  to,  p.  838,  §  36. 

subsequent  debts,  proof  of,  effect  on,  p.  838, 
§36. 

14.  Discharge. 

of  partners,  p.  839,  §  39. 

not  granted  to  corporations,  p.  841,  §  40. 

time  for  application  for,  p.  000,  §  52. 

notice  of  application  for,  p.  846.  §  52. 

opposition  to  and  manner  of  trial,  p.  848,  §  54. 

oatli  before  discharge  granted,  p.  846,  §  53. 

when  granted,  p.  848,  §  55. 

refusal  of,   effect  of  on  proceedings,    p.   850, 

§58. 
when  discharge  not  granted,  p.  846,  §  53. 
certificate  of,  p.  848,  §  55,  p.  849,  §  57. 
what  debts  not  released  by,  p.  849,  §  56. 
what  debts  released  by,  p.  849,  §  57. 
setting  aside  for  fraud,  p.  849,  §  57. 

15.  Dismissal;  appeal. 

dismissal   of   proceedings   before   appointment 

of  assignee  on  order  of  court,  p.  855,  §  70. 
dismissal  on  petition  of  creditors,  p.  855,  §  70. 


INDEX.  967 

INSOLVENCY— Continued. 

dismissal  after  appointment     of     assignee,  p. 

855,  §  70. 
appeals  in,  how  taken,  p.  855,  §  71. 
appeals  may  be  taken  from  what  orders  in,  p. 

855,   §71. 
appeals  in,  stay  of  proceedings,  p.  855,  §  71. 
appeal  in,  bond  on,  p.  855,  §  71. 

16.  Costs. 

costs  in  proceedings  in  involuntary  insolvency, 

allowance  of,  p.  854,  §  69. 
costs  of  attachment  proceedings  dissolved  by 

insolvency,  allowance  of,  p.  854,  §  69. 
contested  matters  in,  costs  in,  allowance  of,  p. 

854,  §69. 

17.  Offenses. 

penalty  for  concealment  of  property,    p.  835, 
§28. 

misdemeanor,  obtaining  credit  under  false  pre- 
tenses, p.  851,  §  60. 

misdemeanor,    secreting    or    concealing    prop- 
erty, p.  851,  §  60. 

misdemeanor,  destroying,  altering,  or  conceal- 
ing books,  p.  851,   §  60. 

misdemeanor,   gaming,  p.  851,   §  60. 

misdemeanor,     making     gifts,     payments,     or 
transfer  to  avoid  debts,  p.  851,  §  60. 

misdemeanor,  omitting    property    from  sched- 
ule, p.  851,  §60. 

misdemeanor,  proving  fictitious    debts,  p.  851, 
§60. 

misdemeanor,  fictitious  losses  and  expenses,  p. 
851,  §60. 

misdemeanor,  making  transfers    of  goods    ob- 
tained on  credit,  p.  851,  §  60. 
INSPECTION  OP  WRITINGS,  refusal  of,  its  ef- 
fect, §  449. 

may  be  demanded,  §  1000. 

order  of  survey  of  real  property,  §§  742,  743. 

every  citizen  entitled  to  inspect  and  copy  pub- 
lic writings.  S  1892. 

party  inspecting  not  bound  to  produce  writing 
in  evidence,  §  1939. 

docket  of  .iiidgment  to  be  always  open  for  in- 
spection, §  673. 


«fi8  INDEX. 

INSPECTION  OF  WRITINGS— Continued. 

produced  by  witness    to  refresli  liis  memory, 

§  2047. 
writing  stiown  witness  may  be    inspected    by 
adverse  party,    §  2054. 
INSTRUCTIONS    TO    JURY,    charge,    what   to 
state,  §608. 
what  must  be  furnished  on  request,  §  G08. 
as  to  findings  of  fact,  §  625. 
jury  may  return  for  further,  §  614. 
special,  how  given,    §  609. 
as  to  evidence,  §  2061. 
may  be  given  on  holidays,  §  134. 
INSTRUMENTS    IN     WRITING.      See     Private 

Writings;   Written  Instruments. 
INSUFFICIENCY,  of  facts,  ground  for  demurrer, 
§  430. 
of  evidence,  ground  for  new  trial,  §  657. 
INSURRECTION,  change    of    place    of     holding 

court,  on  account  of,  §  142. 
INSURANCE        COxMMISSIONER,        corporation 
formed   to   act  as   surety,    examination   into 
by  insurance  commissioner,   and  duties    of, 
§  1056. 
ITALIAN  LANGUAGE,  act  authorizing  appoint- 
ment of  Italian  interpreter,  p.  856. 
INTERPRP:TER,   generally,    §  1884. 
of  the  Italian  language,  §  1884. 
act  authorizing  appointment  of  Italian  inter- 
preter in  criminal  proceedings.       See     Penal 
Code,  Appendix,  title  Interpreters, 
act  relating  to  interpreters  before  grand  jury. 
See  Penal  Code,  Appendix,  title  Interpreters. 
INTERVENTION,  when  .it  takes  place,  and  how 
made,  §  387. 
parties  may  be  brought  in,  §  387. 
IRREGULARITY,     of    proceedings,     ground    for 
new  trial,  §  657. 
effect  of,  in  proceedings  on  judicial  sale,  §  708. 
IRRELEVANT  MATTER,  may  be  stricken    out, 

§453. 
INTERROGATORIES,  annexed  to  commission  to 
take  testimony,  §  2025. 

See  Evidence. 


I 


INDEX.  969 

ISSUES,  defiuitiou.   kinds  of,   §  588. 
of  laAv,  how  raised,  §  589. 
of  fact,  how  raised,  §  590. 
of  law,  how  tried,  §  591. 
of  fact,  how  tried,  §  592. 
of  law,  to  be  lirst  disposed  of,  §  592. 
judgment  on,  §  036. 
cases  to  be  placed  on  calendar,  §  593. 
parties  may  bring-,  to  trial,  §  594. 
postponement  of  trial  of,  §  595. 
proceedings  to  defeat  postponement,  8  596. 
special,  §  309. 
in  partition  suits,   §  759. 
in  mandate,  when     may     be    tried     by     jury, 

§1090. 
in  proceedings  against  joint  debtors,  §  994. 
in  forcible  entry  and  detainer.  §  1171. 
in  justices'  courts,  defined,  §  878. 
trial  of  fact  by  jury,  how  waived,  §  631. 
how  waived  in  justices'  courts,  §  883. 
trial  of  issues  by  referees,  §  038. 
See  Trial. 
ITEMS   OF  ACCOUNT,   need   not  be  set  out  in 

pleading,    §  454. 
JOINDER.    See  Parties;  Causes  of  Action. 
JOINT  AUTHORITY,  majoritv  mav  act,  §  15. 
JOINT    DEBTORS,  proceedings    against,  pames 
not  summoned,  §  989. 
summons,   what  to  contain    and  how  served, 

i^990. 
affidavit  to  accompany  summons,  §  991. 
answer,  when  filed  and  what  to  contain,  §  992. 
pleadings,  what  cousutute,  §993. 
issues,   how  tried,    §  994. 
verdict,  what  to  be,  §  994. 
judgment,  where  some    defendants    only    are 

served,  §  414. 
contribution,  §  709. 

proceedings  against  those  not  served,   §§  989- 
994. 
JUIXJES.     See  Courts:  .Judicial  Officers:  Superior 
Courts;  Superior  Judges, 
counties  having  two  or  more,  §  66. 
of  San  Francisco,  §  67, 
terms  of  office,  §  68. 


970  INDEX. 

JUDGES- Continued. 

computation  of  years  of  office,  §  69. 

vacancies  in  office  of,  §  70. 

courts  lield  by  other,  §  71. 

supreme,  qualifications  of,   §  156. 

supreme   court,    citizensliip    and    residence,    § 

156. 
supreme  court,  quorum,  §  43. 
superior,  qualifications  of,   §  157. 
holding-  courts  at  request  of  governor,  §  160. 
ineligibility  of,  §  161. 
not  to  act  as  attorney,  §  171. 
must  not  have  attorney  for  partner,  §  172. 
powers  of,  out  of  court,  §  176. 
powers  of,  as  to  conduct  of  proceedings,  §  177. 
to  punish  for  contempt,  §  178. 
to  take  acknowledgments,  §  179. 
to  refuse  subsequent  application    for    orders, 

§182. 
proceedings  not  to  be   affected    by    vacancy, 

§  184. 
shall  have  means  to     carry     jurisdiction    into 

effect,  s  187. 
when  not  to  act  as  executors,  §  430. 
when     disqualified,    proceedings     transferred, 

§431. 
may  present  claim  against  estate  of  deceased, 

§495. 
relieved  from  office,  to  settle  exceptions,  §  653. 
may  be  a  witness,  §  1883, 
appeal,  undertaking  on,  power  to  fix  amount 

of,  §943. 
appeal,  undertaking  on,  power  to  take  justifi- 
cation. §  948. 
arrest,  order  for,  by,  §  480. 
attachment,  releasing,  §  554. 
attorney  agreed  on  by  the  parties,  §  72. 
attorney,  must  not  act  as.  §§  171,  172. 
attorney,  must  not  have  partner,  §  172. 
by  agreement  of  parties,  §  72. 
chambers,  power  at  superior,  §§  166,  176. 
chambers,  power     at,  supreme     court,  §§  165, 

176. 
court,  holdin'^  in  another  county.  §  160. 


INDEX.  971 

JUDGES— Continued. 

county  other  than  his  own,  holdin.ir     court  in, 
§1G1. 

commission   to   take   evidence   without     state, 
power  to  issue,    ^  2024. 

disqualified,  Avhen,   §  170. 

election  of,   §§  40,  Go,   110. 

execution,      proceedings      supple  mentaiy      to, 
power  in,  §§  714-721. 

injunction,   dissolviuj;-,   §§  532,   533. 

injunction,  grantinjar,  §  529. 

inspection,  power  to  order,  §  1000. 

jury,  to  assist  at  drawing,  §§  215,  216. 

notice  of  motion     of  setting     aside    judgment 
and  hearing  of,  §  663i/o. 

prisoners,  power  to  discharge,   §§  114o-1154. 

pro  tempore,  §  72. 

residence,  superior,   §  158. 

residence,  justices  of  the  peace,  §  159. 

setting  aside  judgment  not  supported  by  spe- 
cial verdict,  §  663. 

witnesses,  may  be,  in  own  courts,  §  1880. 

acts     increasing     and     reducing     number     of 
judges  in  various  counties.    See  Appendix,  ti- 
tle Courts. 
JUDGMENT,     ►.ee  Decisions. 

definition  of,   §  577. 

against  whom  may  be  given,  §  578. 

against   administrator,   etc.,    §  1504. 

against  attorney  at  law,  for  suspension  or  re- 
moval, §  299. 

against  one  of  several  debtors,  costs  may  be 
severed,  §  1026. 

against  one,  and  action  proceed  as  to  others, 
§579. 

against     married     woman     in  forcible  entry, 
§  1164. 

against  sheriff  for  official  acts,  conclusive  on 
sureties,  §  1055. 

against  decedent,  when  not  a  lien,  §  1506. 

award,  when  it  has  effect  of,  §  1286. 

by  default,    -onerally.  §  585. 

by  default,  relief  against,  §  473. 

by  default  on  amended  complaint,  §  432. 


972  INDEX. 

JUDGMENT— Continued. 

L ,'  default  in  forcible  entry,  §  1169. 

confession  by,  §§  1132-1134. 

costs,  when  allowed  to  plaintiff,  §  1022. 

costs,  when  allowed  to  defendant,  §  1024. 

costs,  when  allowed  to  one  of  several  defend- 
ants, §  1026. 

costs,  to  be  included  on  judgment,  §  1035. 

costs,  on  appeal,  in  discretion,  §  1027. 

currency  in,  §  667. 

deposit,  to  be  applied  to  satisfy,  §§  500,  550. 

docket  of,  effect  of,  §899. 

estoppel,   §  1908. 

effect  of,  upon  rights  of  parties,  §  1908. 

effect  of,  against  discharged  r^nsoner,  §  1152. 

errors  to  be  disregarded,  §  475. 

effect  of  appeal  from,  §  1176. 

effect  of  deatii  after  verdict.  §§  669,  1506. 

for  contempt,  final,  §  1222. 

final,  may  be  appealed  from,  §  939. 

final,  in  district  court,  appeal  from,  §  963. 

how  enforced,  after  five  years,  §  685. 

how  pleaded,  §  456. 

how  revicAved,  §§  936,  937. 

in  .iustices'  court,  not  a  lien  unless  recorded, 
§  900. 

insolvency,  assignment  in,  effect  on,  p.  831, 
§21. 

interest  and  costs  to  be  iuclu.-     in,  §  1035. 

in  supreme  court,  concurrence  necessary, 
§47. 

may  be  appealed  from,  §  939. 

mav  be  filed  and  docketed  in  other  coun- 
ty, §898. 

memorandum  of  costs  to  be  furnished,  5  ^.o3. 

modified  on  appeal,  costs  in  discretion,  §  1027. 

on  counter-claim,  §  666. 

of  dismissal  and  nonsuit,  §  581. 

of  dismissal  against  non-resident,   §  1037. 

of  .iustices'  abstract  of,  §  897. 

of  justices'  and  police  courts,  how  appealed 
from,  §  974. 

on  appeal  from  inferior  court,  may  be  ap- 
pealed from,  §  939. 

on  answer  filed,  relief  granted,  §  580. 


INDEX.  973 

JUDGMENT-Continued. 

on  failure  to  answer,  relief  granted,  §  580, 

on  failure  to  answer,  in  what  cases    granted, 
§  585. 

on  demurrer,  §  G36. 

on  confession,   hoAv  entered,   §  1134. 

on  submission  of  controversv,  §  1139 

on  the  merits,  §  582. 

on  report  of  referee  in  partition,  §  766 

on  usurpation  of  office,  §  808, 

on  review  of  case,  §  1075. 

on  review,  what  constitutes,  §  1077. 

on  appeal,  part  of  .judgment  roll,  §  958. 

on  appeal,  remittitur  to  be  certified  bv  clerk, 
5  958, 

renewal  of.  in  foreclosure,  on  eviction  of  pur- 
chase, §  708. 

satisfaction  of.  under  attachment,  §  .550. 

supreme  court  always  open  to  render.  §  48. 

what  deemed  adjudged  on  former  judgment. 
§  1911. 

what  rights  determined,  in  actions  for  usurpa- 
tion,   §  808. 

when  reversed,  restitution  to  be  made,  §  957 

when  conclusive,  §  1908. 

when   conclusive   in   foreclosure,    §  726. 

what     treatment     of,     constitutes     contempt, 
§  1209. 

appeal  from.  §  939. 
Manner  of  givin^  and   enterinp-. 

book  to  be  kept  by  clerk.  §  668. 

case  may  be  brought  for  argument,   §  665 

docket,  how  kept  and  contents  of.  §  (.r2. 

docket,  to  be  open  for  inspection,  §  ^673. 

gold  coin  or  currencv,   §  667. 

lien  of,  defined.  §  671. 

no  lien  on  estate  where  death  occurred  after 
verdict.    §  1506. 

roll,  what  to  constitute,  §  670. 

satisfaction  of,  how  made,  §  075. 

transcript  of,   may  be  filed     in     any  countv. 
§  674. 

to  be  entered  within  twenty-four  hours,  §  664. 
Code  Civ.  Proc— 82. 


974  INDEX. 

JUDGMENT-Continued. 

upon  death  after  verdict,     not    to     be  a  lien, 

§  669. 
when  counter-claim  exceeds  demand,   §  666. 
In  particular  actions, 
in  general,  what  is,   §  577. 
in  replevin,  to  be  .^n  alternative,  §  667. 
in  special  proceedings,  defined,  §  1064. 
in  actions  to  quiet  lule,  §  740. 
in  contested  elections,  §  1122. 
in  controversy  without  action,  §  1139. 
in  escheated  estates,  §  1271. 
in  forcible  entry     and     detainer,   by  default, 

§  1169. 
in  forcible  entry,  on  verdict,  §  1174. 
in  foreclosure,  §  726. 
in  actions  for  usurpation  of  office,  §  805. 
in  usurpation— fine  may  be  imposed,   §  809. 
in  partition  suits,  §  759. 
in  partition,  effect  of,  §  767. 
in  partition,  how  enforced,  §  684. 
in  election  contests,  §  1122. 
in  mandate  to  be  granted,  §  1095. 
in  actions  for  enforcement  o-u  liens,  §  1192. 
on  liens,  what  to  include,  §  1193. 
on  Hens,  rank  of  liens,  §  1194. 
on  liens,  docketed  for  deficiency,  §  1195. 
in   proceedings   relative   to   escheated   estates, 

§  1271. 
in  proceedings  to  contest  probate,  §  1314. 
in  proceedings  to  declare  wife     sole     trader, 

§1817. 
in  contempts,  fine,  imposed,  §1218. 
on  confession  without  action,   §§  1132-1135. 
In  justices'  courts, 
on  confession  in  justices'  courts.  §  889. 
dismissal  in  justices'  courts,  §  890. 
on  verdict  in  justices'  courts,   §  891. 
on  demurrer  in  justices'  courts,  §  892. 
on  offer  to  compromise,  §  895. 
costs  in.  §  S96. 

abstract  of,  in  justices'  courts.  §  897. 
abstract  to  be  filed  and  docketed.  §  898. 
costs,  allowed  in  justices'  courts,  §  896. 


INDEX.  975 

JUDGMENT— Continued. 

docket  of  justice,  effect  of,  §  Sbv. 
docliet  not  a  lien  unless  abstract  is  recorded, 
■       §  900. 
f       excess  of,  remitted  to  save  jurisdiction  of  jus- 
tice,  §894. 
on  trial  in  justices'  courts,  §  892. 
on  offer  to  compromise     in     justices'     courts, 

?895. 
when  defendant  subject  to  arrest,  §  893. 
JUDGMENT  BOOK,  to  be  kept  by  clerk,  s  668. 
confession     of     judgment     to     be  entered  in, 
§  1134. 
JUDGMENT     DEBTOR,     execution     may     issue 
against,  §  682. 
execution  after  death  of,  §  686. 
property  of,  exempt,  §  090. 
may  indicate  property  to  levy  on,  §  691. 
may  direct  order  of  sale,  §  694. 
may  redeem  property  sold,  wiien,  §  702. 
to  whom  payments  to  be  made,  §  704. 
supplementary  proceedings  against,  §  714. 
may  be  imprisoned,  when,  §  715. 
debtor  of,  may  pay  creditors'  claim,  §  710. 
may  be  punished  for  contempt,  §  721. 
earnings  of,   when  exempt     from     execution, 
§690": 
JUDGMENT  KOLL,  what  to  contain,  §  670. 
to  contain  judgment  on  appeal.  §  9.58. 
what   constitutes,   in  proceedings   for  dissolu- 
tion, §  1233. 
JUDICIAL  DAYS,  what  are,  §  133. 
non- judicial  days,  §  134. 

See  Adjournment. 
JUDICIAL  EVIDENCE,  defined,  §  1823. 
JUDICIAL   NOTICE,     one     kind     of     evidence, 
§  1827. 
facts  of  which  court  Avill  take,  5  1875. 
JUDICIAL     OFFICERS.     See     Courts;     Juds^es; 
Police    Courts;    Superior     Courts;      Superior 
Judges, 
in  general,  §§  156-161. 
mav  take  acknowledgments     and     affidavits, 

§179. 
may  take  depositions  in  this  State,  §  2031. 
exempt  from  jury  duty,  §  200. 


976  INDEX. 

I 

JUDICIAL  OFFICERS— Contimied. 

incidental  powers  and  duties  of,  §§  176-179. 

powers  of,  out  of  court,  §  176. 

enumeration  of  powers,  §  177. 

may  punisli  for  contempt,  §  178. 

what  acts  are  contempts,  §  1209. 

subsequent  application  for  orders,  prohibited, 

§182. 
subsequent  applications,   a  contempt,    §  183. 
procee<1in.2:s  not  affected  by  vacancy,   §  184. 
proceedin,2:s  to  be  in  English,  §  185. 
abbreviations  and  fi.sures,  §  186. 
power  to   enforce     exercise     of     iurisdiction, 

<•    -I  Qi-r 

JUDICIAL  POWERS,     by     special     investment, 

1 190. 
JUDICIAL  RECORD,  defined,  §  1904.  I 

how  authenticated,   as  evidence,   §  1905.  ' 

of  foreign  country,  how  authenticated,  §  1906. 

foreign,  what  must  contain,  §  1906. 

copy  of.  of  foreign  country,  §  1907. 

effect  of  .iudsrment  upon  rights,  s  1908. 

effect  of  judicial     orders,     when     conclusive, 
§  1909. 

when  parties  to  be  deemed  the  same.  §  1910. 

v^hat  deemed   adjudged   in,   judgment,    §  1911. 

where     sureties      bound,     principal     is     also, 
§  1912. 

of  sister  state,  its  effect,  §  1913. 

of  court  of  admiralty,  §  1914. 

of  foreign  judgment,  its  effect,  §  1915. 

manner  of  impeaching,   §  1916. 

jurisdiction  required  to  sustain,   §  1917. 

justices'  judgment  in  other  state,  how  proved, 
§  1921. 

See  Evidence. 
JUDICIAL  REMEDIES,   defined,   §  20. 

how  divided,   §21. 
JURISDICTION,  acquired  by  voluntary    appear- 
ance, §  416. 

demurrer  for  Avant  of,  §  480. 

not  waived  V»y  not  raising  objection,  §  434. 

of  judicial  officers,  to  take  acknowledgments, 
etc..   §  179. 

includes  necessary  means  to  enforce,  §  187. 


INDEX.  977 

JUmSDICTION— Contiuued. 

in  change  of  name,  §  1275. 

in  escheated  estates,  §  1269. 

in  proceedings  on     confession     of     judgment, 
§  1132. 

in  insolvency  cases,  §  76. 

in  cases  for  breaches  of  the  peace,  §  115. 

in  proceedings  for  change  of  names,  §  1275. 

in  proceedings   for     condemnation     of     land, 
§  1243. 
I         over  estate  in  several  counties,  §  129o. 
I         of  court  of  impeachment,    §  37. 
^        of  supreme  court,  §§  50-53. 
[         of   superior   courts,    §§    75-77. 
j         of  superior  courts,  act  conferring  jurisdiction 
'  of  district,  probate,     and     county  courts,  p. 

:  865. 

1         of  superior  court,  continuation  of  trials  in,  p. 
865,  Stat. 

of  justices'  courts,  §§  112-115. 

of  justices'  courts,  territorial  limit,   §  106. 

of  justices'  courts,  civil.  §  112. 

of  justices'  courts,  concurrent,  §  113. 

of  justices'  courts,  civil,  restricted,  §  114. 

of  justices'  courts,  criminal,  §  115. 

of  police  courts,  §§  121.  932. 

means  to  carry  into  effect,  §  187. 

when  acquired,  §  410. 

want  of,  a  ground  for  demurrer,  §  430. 

want  of  ground  for  impeachment     of     record, 
§  1916. 

what  required  to  sustain  record,  §  1917. 
'  JURY,  admonition  to,  in  separation,  §  61i. 
1         agreement  of,  §  618. 

ballot-box,  §  209. 

certificKl  list  to  be  filed  with  clerk  of  superior 
court,  §  208. 

challenges,  §  601. 

challenges,  grounds  for,   §  602. 

challenges,  for  cause,  trial  of,  §  603. 

charge  to,  §§  608,  609,  2102. 

charge  to,  further,  §  614. 

deliberations  of,  §§  611-613. 

definition  of,  §  190. 

discharge  of,   §  616. 


978  '  INDEX. 

JITHY— Continued. 

discharge  of,  holidays,   §  134. 

drawing-,  §§  211,  214-220,  OUO. 

eminent  domain,  §  1248. 

excusing,  §§  201,  615. 

exemptions,  §  200. 

exemptions,  atfidavit,  §  202. 

facts,  to  decide,  §2101. 

failure  to  attend.  §  238. 

findings,  special,  §  625. 

formation  of,  §  600. 

grand,  box,  §§  209,  211. 

grand,  definition  of,  §  192. 

grand,  how  often  impaneled,   §  241. 

grand,  number  nineteen,  etc.,  §  242. 

grand,  reference  to  Penal  Code,  §  243. 

holiday,  verdict  may  be  received  and  jury  dis- 
charged, and  instructions  given  on.  §  617. 

impaneling,  §§  241-254. 

inquest,  §§  195,  235,  254. 

insolvency,  petition  and  answer  in  trial  by 
jury  on  issues  in,  p.  826,  §  12. 

instruction,  §§  608,  609. 

instructions,   further,   §  014. 

instructions,  holidays,  giving  on,  §  134. 

irregularity,  §§  601,  657. 

justices'  courts,  §  2.30. 

keeping  together,  §  613. 

kinds  of,  §  191. 

listed,  how,  §§  204-208. 

oath,  §604. 

obedience,  enforcing,  §  238. 

papers,  may  take  when  retiring,  §  612. 

police  courts,    §  230. 

polling,  §  618. 

probate  contest,  §  1313. 

qualifications  necessary.  §§  198,  199. 

regular,  serve  one  year,  §  210.  J 

separation  of,  §  611.  ^ 

siclvuess,  §  615. 

summoniuir,  §§  225-235. 

talesmen,  §  227. 

term,  close  of,  effect,  §  617. 

trial,  box,  §§  209,  211. 

trial,  court  not  of  record,  calling,  §  250. 


INDEX.  9T9 

JUKY— Continued. 

trial,  court  of  record,  calling,   §  246. 

trial,  court  of  record,  impaneling,  §§  600-604. 

trial,  definition  of,  §  193. 

trial,  number  twelve,  §  194. 

verdict,  S§  618,  024,  et  seq. 

verdict,  aflidavit  to  impeach,   §  657. 

verdict,  counter-claim,  §  626. 

verdict,  correction  of,  §  619. 

verdict,  entry  of,  §  628. 

verdict,  generally,   §§624,   625. 

verdict,  informal,  correcting,  §  619. 

verdict,   sealed,    §  617. 

verdict  separate,  §  624  n. 

verdict,  special,  §§  624,  625. 

verdict,  specific  property,  §  627. 

view  by,   §  610. 

waiver  of,  §  631. 

waiver  of,  justices'  courts,  §  883. 

witnesses,   may  be,   §  1883. 
JUSTICES  OF  THE  PEACE. 
In  cities  and  counties. 

courts  and  justices,   §  85. 

clerk  of,  §  86. 

sheriff  and  deputies,  ex-officio  officers,  §  87. 

officers,  and  office  hours,  §  88. 

actions  in,  §  89. 

reassignment  and  transfer  of  actions,    §  90. 

payment  of  fees,  §  91. 

transcripts  and  other  papers,   §  92. 

doclvets,  §  93. 

jurisdiction,  territorial  extent,  §  94. 

practice  aiid  rules,  §  95. 

clerk  of,  not  to  act  as  attorney,  §  96. 

salaries,  §  97. 

what  justices  successors  of  others,  §  98. 

act  creating  in  Berkeley,  p.  8.o9. 

act  providing  election,  compensation,  iurisdic- 
tion,  practice,  etc.,  in  Berkeley,  p.  859. 
In  townships. 

at  least  one  in  each  township,  §  ±^6. 

where  held,  §  104. 

what  justice  may  hold  for  another,  §  105. 

territorial  jurisdiction,  §  106. 

what  justices  successors  of  others,  §  107. 


980  INDEX. 

JUSTICES  OF  THE  PEACE— Continued. 
In  general, 
terms  of  office,  §  110. 
election  and  term  of  office  of,  §  85. 
vacancies,  how  filled,  §  111. 
justice,  where  to  reside,  §  159. 
disqualification  to  sit  or  act,  §  170. 
not  to  practice  before  justices'  court,  §  171. 
not  to  have  attorney  for  partner,  §  172. 
blanks  in  papers  to  be  filled,  except  subpoe- 
nas, §920. 
justices  to  receive  moneys  and  pay  to  parties, 

§921. 
in  case  of  disability,  anotljer  justice  may  at- 
tend,  §  922. 
may  require  security  for  costs,  §  923. 
who  entitled  to  costs,  §  924. 
what  provisions  of  Code  applicable  to,  §  925. 
may  receive  deposit  in  lieu     of  undertaking, 

§  926. 
act  providing  manner  of  compensation     of,  p. 

857. 
depositions  issuing  from  justices'   court,   how 
taken,  ^S  2024. 
Place  of  trial  of  actions  in. 
in  what  township  or  city  may  -^e  commenced, 

§832. 
place  may  be  changed  in  certain  cases,  §  833. 
limitation  on  right  to  change,  §  834. 
to  what  court  transferred,  §  835. 
proceedings  after  order  changing  venue,  §  836. 
effect  of  order  clianging  venue.  "  837. 
transfer  of  cases  to  district  court,  §  838. 
Actions,  how  commenced  in  and  appearance, 
by  filing  complaint  and  issuance  of  summons, 

§  839. 
summons  may  issue  within  a  year,  ?  840. 
issuance  of  summons,  how  waived,  §  841. 
appearance,  by  attorney  or  in  person,  §  842. 
guardian,  how  appointed,  §  843. 
summons,  how  issued,  and  what  to     contain, 

§  844. 
time  for  defendant  to  appear,  §  845. 
alias  summons,  when  may  issue,  §  846. 
several  alias,  may  be  issued,  §  847. 


INDEX.  981 

JUSTICES  OF  THE  PEACE— Continued, 
limitations  npon  time  of  service,  §  848. 
snmmons,  by  whom,  and  how  served,  §  849. 
hour  ixiven  for  appearance,  §  850. 
act  concerning?  service  of  summons  in  justice's 
court  of  San  Francisco,  p.  858. 
Pleadings  in. 
form  of,  §  851. 
what  constitutes  the,  5  852. 
complaint  defined,  §  853. 
when  demurrer  may  be  put  in,  §  854. 
answer,  what  to  contain,  §  oo^. 
omission  to  set  up  counter-claim,  effect  of,   § 

856. 
when  plaintiff  may  demur  to  answer,  §  857. 
proceedings  on  demurrer,   §  858. 
amendment  of  pleadings,  when  allowed,  §  859. 
costs  on  allowance  of     amendments,  when,   § 

859. 
time  in  which  to  demur  or  answer  to  amend- 
ed pleadings,  §  8o0. 
Arrest  and  bail, 
order  of  arrest,  and  arrest  of  defendant  §  861. 
affidavit  and  undertaking  for  order,  §  862. 
defendant  arrested,  must  be  taken  before  jus- 
tice, §  8G3. 
officer  to  give  notice  to  plaintiff  of  arrest,   § 

864. 
officer  to  detain  defendant,  §  865. 
See  Arrest  and  Bail. 
Attachment, 
writ  to  issue  upon  affidavit.  §  866. 
undertakinsr  required,   §  867. 
writ,  substance  of,  §  868. 
undertaking  may  be  taken  by  officer,  §  868. 
provisions  applicable  to  justice's  attachments, 
§869. 

See  Attachments. 
Claim  and  delivery, 
how  enforced,  §  870, 

See  Claim  and  Delivery. 
Judgment  by  default, 
on  failure  of  defendant  to  appear,  §  871. 
on  demurrer,  §  872. 


982  INDEX. 

JUSTICES  OF  THE  PEACE— Continiied. 
Trial  and  postponements. 

when  trial  must  commence,  §  873. 

postponement  on  motion  of  court,  §  874. 

postponement  by  consent  of  parties,  §  875. 

postponement  on  application  of  party,  §  876. 

conditions  imposed  for  postponement,   §  877. 

issues,  defined,  §  878. 

issues  of  law,  defined,  §  879. 

issue  of  fact,  defined,  §  880. 

issue  of  law,  how  tried,  §  881. 

issue  of  fact,  how  tried,  §  882. 

jurors  for,  §  230. 

how  summoned,  §  231. 

return  of  oflicer,  §  232. 

proceedings  in  forming  jury.  §  250. 

manner  of  impaneling,  §  251. 

jury,  how  waived,  §  883. 

trial  to  proceed  if  either  party  fails  to  appear, 
§  884. 

challenges,  peremptory  and  for  cause,  allow- 
ed, §  885. 

cause  of  challenge  in  justice's  court  in  Hum- 
boldt, p.  860,  Stat. 

inspection  and  copy  of  writing  may  be  order- 
ed, §886. 

genuineness  of  signatures,  when  deemed  ad- 
mitted, §887. 
Judgments  other  than  by  default. 

by  confession,  §  889. 

by  confession,  proceedings  on,   §  1135. 

of  dismissal,  without  prejudice,  §  890. 

upon  verdict,  when  to  be  entered,  §  891. 

on  trial  by  coui-t,  when  to  be  entered,  §  892. 

on  arrest,  what  fact  must  be  stated,  §  893. 

sum  in  excess  of  jurisdiction  may  be  remitted, 
§894. 

on  offer  of  compromise  before  action,  §  895. 

costs  to  be  included  in,  §  896. 

abstract  of,  form  of,  §  897. 

abstract  to  be  tiled  and  docketed,  §  898. 

execution  thereon  may  issue,   when,    §  899. 

not  a  lien  on  lands  unless  recorded,  §  900. 
Appeals  fron. 

to  supreme  court,  §  964. 


INDEX.  983 

JUSTICES  OF  THE  PEACE— Continued, 
to  superior  court,  §§  974-980. 
Execution, 
may  issue  within  five  years,   §  901. 
contents  of,  §  902. 
liow  renewed,   §  903. 
duty  of  officer  receiving,  §  904. 
supplementary  proceedings  on,   §  905. 
act  relative  to  executions  in  justices'  court  in 

Alameda  county  repealed,  p.  861. 
Contempts  in. 
justice  may  punish  for,  §  906. 
in  immediate  view  of    justice,  how  punished, 

§907. 
not    in  immediate  view,  warrant    to    issue,  § 

908. 
punishments  for,  extent  of,  §  909. 
conviction  to  be  entered  in  the  docket,  §  910. 
Dockets  of  justices, 
what  to  contain,  §  911. 
entries  in,  primary  evidence  of  fact,  §  912. 
index  must  be  kept,  §  913. 
must    be   delivered    to     successor    by  county 

clerk,  §914. 
proceedings  on  vacancy  of  office,  and  before 

appointment,   §  915. 
justice  may  issue  process  on  docket  of  prede- 
cessor, §  910. 
successor  of  justice,  who  deemed,  §  917. 
superior  judge,  when  to  designate,  §  918. 
Jurisdiction  of. 
cannot  issue  writ  of  review,  §  1068. 
cannot  issue  mandate,  §  1085. 
cannot  issue  prohibition,  §  1103. 
extent  of  civil  jurisdiction,  §§112-114. 
jurisdiction,    how   restricted,    §  114. 
civil  jurisdiction  of,  §  112. 
concurrent  jurisdiction  of,  §  113. 
civil  jurisdiction  restricted,  §  114. 
criminal  jurisdiction  of,  §  115. 
transfer  of  cases  to  superior  courts,  §  838. 
may  issue  subpoenas  and  final  process,  §  919. 
may  take  acknowledgments  and    affidavits,  § 

179. 
act  conferrin.'i;  jurisdiction  on,  r.  857. 


984  INDEX. 

JUSTICES     OF     SUPREME     COURT,  qualifica- 
tions. §  156. 

iueligibility  of,  §  161. 

powers  of,  at  chambers,  §  165, 

disqiialitications  of,  §  170. 

not  to  practice  law,  §  171. 

not  to  have  partners  practicing  law,  §  172. 

powers  of,  out  of  court,  §  176. 
JUSTIFICATION     OF     SURETIES,  arrest     and 
bail,  §§  493,  494. 

attachment.   '  555. 

claim  and  delivery,  §  513. 

court  commissioners  may  take,  §  259. 

generally,  §  1057. 

mode  of,  §  495. 

of  sureties  to  undertaking,  §  1057. 

of  sureties,  on  claim  and  delivery,  §  513. 

of  sureties,  on  aiTest  and  bail,  §§  493,  495. 

in  defense,  to  action   of   libel  and     slander,  § 
461. 

court  commissioners  mav  take,  §  259. 
liA BORERS,  liens  of,  §  1188. 

See  Liens,  Enforcement  of. 
LAND,  defined,  §  ±7. 

LANDLORD     AND     TENANT,  adverse     posses- 
sion, §  326. 

may  be  joined  as  defendants,  §  379. 

notice  of  proceedings  to  be  given  tenant,  §  379. 

unlawful  detainer,  §  1161. 
LAW  OF  EVIDENCE,  defined,  §  1825. 
LAWS.    See  Statutes. 

are  either  written  or  unwritten,  §  1825. 

written  law  defined,  §  1896. 

constitution  and  statutes,  §  1897. 

public  and  private  statutes  defined,  §  1898. 

unwritten  law  defined,  §  1899. 

books     containing,  admissible    in     evidence,  § 
1900. 

how  authenticated,  §  1901. 

recitals  in  statutes,  how  far  evidence,  §  1903. 

oral  evidence  of  foreign  laws,  §  1902. 

foreign  law  ])resumed     same  as  law  of     this 
state,  §  1963. 

foreign  country,  how  proved,  §§  1900-1902. 

binding  on  all  tribunals,  §  2103. 


INDEX.  985 

LAWS— Continued. 

organic,  what  is,  §  1897. 
questions  of,  for  court,  §  2102. 
sister  state,  of,  how  proved,  §§  1900-1902. 
statutes,  what  are,  §  1897. 
unwritten,  §  1899. 
written,  what  is,  §§  1896,  1897. 
written  or  unwritten,  §  1895. 
LEASEHOLD,  when     subject     to     redemption.  § 
700. 
execution,  sale  on,  of   lease  of    less  than  two 
years,  absolute.  §  700. 
LEGAL    CAPACITY,    want    of     ground    for  de- 
murrer, §  430. 
LEGISLATURE,  extension  of  time  where  attor- 
ney in  attendance  on  legislature.  §  1054. 
LEVY.    See  the    various    titles,   as    Attachment; 

Execution,  etc. 
LIABILITY,   confession  of  judgment  for  contin- 
gent, §1133. 
of  otlicer  arresting  witness,   §  20G8. 
officer,  when  not  liable,  §  2069. 
of  olficer  on  execution  sale,  limit  of,  §  697. 
See  Sheriff. 
LIBEL     AND     SLANDER,  how  stated     in    com- 
plaint, §  460. 
answer  in  actions  for,  §  461. 
what  may  be  given  in  evidence,  §  461. 
undertaking  in  action  for,  p.  861. 
plaintiff  must  file  bond  to  cover  costs,  p.  861, 

Stat, 
additional  costs  allowed  in,  p.  861,  Stat. 
LIBRARIES,  of    whom,  exempt  from  execution, 

§690. 
LICENSE,  of  attorney  to  practice,  §  277. 
])enalty  for  practicing  without,  §  281. 
LIEN,  assignment  for  benefit  of  creditors,  wages, 
etc.,  §1204. 
definition  of.  §  1180. 
foreclosure  of,  §  726. 
judgment.  §§  669-674. 

mechanic's,  action    for    debt     may  be  concur- 
rently maintained,  §  1197. 
mechanic's,  action  may  be  one  for  all,  §  1195. 

Code  Civ.  Proc— 83. 


986  INDEX. 

LIEN— Continued. 

mechanic's,  actions,  consolidating,   §  1195. 
mechanic's,  amount  recoverable  on,  §  1193. 
mechanic's,  appeal,  §  1199. 
mechanic's,   bond  of  contractor,    §  1203. 
mechanic's     bond,  failure    to    file,  effect  of,  § 

1203. 
mechanic's,    contractor     abandoning     work,  § 

1200. 
mechanic's,  contractor's  bond  inures  to  bene- 
fit of  laborers,  §  1203. 
mechanic's,  costs,  §  1195. 
mechanic's,  duration,  ninety  days,  §  1190. 
mechanic's,   exemption  from  execution,   mate- 
rials, §  1196. 
mechanic's,  filing,  §§  1187-1189. 
mechanic's,  forfeiting  lien  by  false  notice,  etc., 

§  1202. 
mechanic's,  generally,   §§  118.3-1199. 
mechanic's,  grading,  etc.,  for,  §  1184. 
mechanic's,     highways,     improvement     on,    § 

1191. 
mechanic's,  impaired  only  bv  written  consent, 

§  1201. 
mechanic's,     incumbrances     postponed     to,     § 

1186. 
mechanic's  land  sub.iect  to,  §  1185. 
mechanic's,    filing    notice     of     completion     of 

building  and  cessation  of  work,  §  1187. 
mechanic's,  materials,  §  1183  n. 
mechanic's,  materials  exempt  from  execution, 

§  1196. 
mechanic's,  new  trials,  §  1199. 
raechnnic's,  notice  by  owner  to  avoid  liability, 

§  1192. 
mechanic's,   notice  to    owner  of    labor    done. 

etc.,  §  1184. 
mechanic's,  parties  to  action.  §  1195. 
mechanic's,  payment  of  contract  price,  §  1184. 
mechanic's,  practice,  rules  of,  §  1198. 
mechanic's,  priority,  §§  1186,  1194. 
mechanic's,  property    subject   to,  §§  1183-1185, 

1192. 
mechanic's,  recording,  §  1187. 
mechanic's,  separate  parcels,  claim  on,  §  1188. 


INDEX.  987 

LIEN— Continned. 

mechanic's,  service  by  publication,  §  1191. 

mechanic's,  statement  of  demand,  §  1187. 

mechanic's,  subcontractors,  §  118G. 

ships,  etc.,  §§  813-827. 

wages,  etc.,  attachment,  §  1206. 

wages,  etc.,  disputing  claim,  procedure,  §  1207. 

wages,    etc.,  estates    of     deceased    persons,  § 
1205. 

wages,  etc.,  execution,  §  1206. 

wages,  salaries,  etc.,  §§  1204-1206. 
LIFE  ESTATE.    See  Estates  for  Life. 

disposition  of,  on  owner's  death,  §  1723. 

setting-  off  in  partition,  §  770. 
LIMITATION,  absence  from  state,   §  351. 

account,  mutual,  open,  current.  §  344. 

acknowledgment  in  writing,  §  360. 

"action,"  meaning  of,  in  this  portion  of  code, 
§  363. 

administrators,  §  353. 

alien  enemy,  §  354, 

answer  or  ground  of,  §  458. 

appeal,  reversal  on,  effect,  §  355. 

assault,  §  340. 

assessment,  stock  sold  for,  §  341. 

bail-bond  in  criminal  action.  §  340. 

banks,  §348. 

battery,  §  340. 

commencement  of  action,  §  350. 

constable,  against,  §§339,  340. 

continues  to  run  notwithstanding  code.  §  9. 

contract,  parol,  §  339. 

conversion,    §  338. 

coroner,  against,  §  339. 

corporation,  penalty  or  forfeiture,  §  359. 

credits,  mutual,  §  344. 

criminals,  §§  328,  352. 

county  against,  §  342. 

curreut  account,  §  344. 

death,  effect  of,  §  353. 

death,  negligence  or  act  causing,  §  339. 

deceased  person,  claim  against  estate  of,  §  353. 

DO  limitation  to  action  for     money  deposited 
with  banker,  p.  874,  Stat. 

deposits,  §  348. 


)88  INDEX. 

LIMITATION— Continued. 

detinue,  §  338. 

directors  of  corporation,  penalty  or  forfeiture, 
§359. 

disability,  §§  328,  352. 

disability,  more  than  one,  §  358. 

disability  must  exist  when  right  of  action  ac- 
crues. §  357. 

effect  of  statute,  §  312. 

escape,  §  340. 

execution,  time  for  issuing,  §  681. 

executors,  §  353. 

false  imprisonment,  §  340. 

Hve  years,  §  336. 

foreign  country,  reciprocity  clause,   §  361. 

forfeiture,  §  340. 

forfeiture,  corporation,  §  359. 

four  years.  §  337. 

fraud.  §  338. 

generally,  where  not  otherwise  specified,  § 
343. 

guardian's  bond,  action  on,  §  1805. 

guardian,  recovery  of  property  sold  bv,  §  1806. 

infants.  §§  328,  352. 

injunction,  effect,  §  356. 

insanity,  §§  328,  352. 

insolvency  proceedings,  statute  of  limitations 
does  not  run  pending,  p.  852,  §  62. 

instrument  in  writing,  §  337. 

instrument  not  in  writing,  §  339. 

.iuda-ment,  action  on,  §  336. 

liability   created  by   statute,   §  338. 

libel.  §340. 

loan  societies,  §  348. 

lost  certificates  of  deposit  after  they  have 
been  found,  act  authorizing  suits  on,  p.  874, 

lunatics,  §§  328,  352. 

married  women.   §§  328,  352. 

mesne  profits.  §  330. 

mistalve,   §338. 

mob,  damages  by,  §  340. 

mortgage,  suit  to  redeem,  §§  346.  347. 

mutual  account,  §  344. 

negligence,  causing  death,  §  339. 

new  promise,   §  360. 


INDEX.  989 

LIMITATION— Continued, 
occupation,   §§  321-327. 
official,  against,  §§  339-341. 
one  year,  §  340. 
open  account,  §  344, 
patent,  effect  of,  §  310. 
patent,  void,  §  317. 
penalty,  §  340. 
penalty,  corporation,  §  359. 

people,  claim  of,  for  real  property,  §§  315,  317. 
personal  actions,  §  335. 
plea  of,  §  458. 

pleaded,  if  not,  waived,  §  434. 
presumption  as  to  possession,  §  321. 
prohibition  by  statute,  injunction,  etc.,  §  356. 
qui  tam,  §  340. 
real     property,   actions     or     defenses    arising 

out  of  title  to,  §  319. 
real  property,  adverse  possession,  §§  321,  322. 
real  property,  adverse  possession,  landlord  and 

tenant,  §  326. 
real  property,  adverse  possession,  under  claim 

of  title  not  written,  §§  324,  325. 
real  property,  constructive  occupation,   §  323. 
real  property,  death,  effect  of,  §  327. 
real  property,  descent,  right  of  possession  not 

affected  by,  §327. 
real  property,  entry,  §  320, 
real  property,  landlord  and  tenant,  §  326. 
real  property,  possession,  constructive,   §  323. 
real    property,  possession,  when    presumed,   § 

321. 
real  property,  seisin  within  five  years,  §  318. 
reciprocity  with  foreign  countries,  §  361. 
relief  not  otherwise  provided  for,  §  343. 
redeem,  suit  to,  §  346. 
redemption,  time  of,  §  702. 
replevin,  §338. 

representatives,  actions  by  and  against,  §  353. 
reversal  on  appeal,  eft'ect,  §  355. 
riot,  damages  by,  §  340. 
savings  banivs,  §  348. 
seduction    §  340. 
sheriff,  against,  §§  330,  340. 
six  months,  §§  34i,  342. 


990  INDEX. 

LIMITATION— Continued, 
slander,  §340. 
state,  absence  from,  §  351. 
state,  against,  §  345. 
state,  actions    against,  time  to    bring,  p.  868, 

Stat, 
state,  grantee  of,  §§  316,  317. 
state,  written    instrument    executed    out  of,  § 

339. 
statute,  action  on,  §  340. 
statute,  liability  created  by,  §  338. 
stock  sold  for  assessment,   action  to  recover, 

§341. 
stocliholders,  of  corporation,   §  359. 
supervisors,  against,   §  342. 
suspension  of  rights  of  action,  §  346. 
tax  collector,   §  341. 
three  years,  §338. 
time  in  actions,  not  relating  to  real  property, 

§335. 
trespass,  §338. 
trover,  §  338. 
trust  companies,  §  348. 
two  years,  §  339. 

vacancy  in  administration,  effect  of,  §  1501. 
will,   contesting  probate,   §  1327. 
written  instrument,  action  on,  §  337. 
LIS  PENDENS,  to  be  filed  in  real  actions,  §  409. 
to  be  filed  in  partition,  §  755. 
See  Notice. 
LOS    ANGELES    COUNTY,  acts  increasing  num- 
ber of  judges  in,  p.  804  et  seq. 
LOST    INSTRUMENTS,  act  authorizing  suits  on 
certificates  of  deposit  after  they  are  found, 
p.  874. 
lost    papers,  copy  of,  when     may    be    filed,  § 

1045. 
lost  will,  proceedings  in  probate  of,  §  1338. 
See  Will. 
LUNATIC,   escheated  estates,   §  1272. 
guardian.    See  Guardian, 
limitations,  in  reference  to.  §§  328,  352. 
summons,  how  served  on,  §  411. 
witness,  cannot  be,  S  1880. 
MANDAMUS,  alternative,  §§  1087,  1088. 


INDEX.  991 

MAN  DAISIUS— Continued. 

alternative,  return  of  answer,  §  1089. 

answer,  §  1090. 

answer,  demurrer  to,  §  1091. 

appeal  in  cases  of,  §  1064. 

costs,  §  1095. 

damages,  §  1095. 

defined,  §1084. 

demurrer  to  answer,  §§  1090,  1091. 

directed  to  whom,  §  1085. 

disobedience,  penalty,  §  1097. 

j^enerally,  §§  1085-1097. 

hearing,  any  time,  may  be  at,  §  1108. 

hearing,  what  may  be  inquired  into,  §  1090. 

hearing,  where  no  answer,  §  1094. 

issue,  any  time,  may  at,  §  1108. 

issue,  when  to,  §  1086. 

issues,  from  what  courts,  §  1085. 

jurisdiction  of,  §§  51,  1085. 

jury  trial,  when,  §  1090. 

new  trial,  §§  1092,  1093,  1110. 

peremptory,  §§  1087,  1088. 

service  of,  §  1096. 

supreme  court,  writ  out  of,  §§  51,  54. 

trial,  §  1091. 

verdict  to  be  transmitted  to  court,  §  1093. 
MAPS  AND  CHARTS,  as  evidence,  §  1936. 
MAllINER,  proceedings  to    enforce    claims  of,   § 
825. 

proof  of  claims  of.  §  826. 
See  Boats. 
MARK,  included    in    signature  or  subscription,  § 

17. 
MARRIAGE,  abatement,  §  385. 

administratrix,  effect  on  authority  of,  §  1370. 

breach  of  promise,  private  sittings,  §  125. 

executrix,    §  1.3.52. 

limitations,  affects  how,  §§328,  352. 

perpetuating  evidence  of,  §  2084. 

no  defense  in  actions  for  unlawful  detainer,  § 
1164. 
MARRIED  WOMAN,  when  may  sue  alone,  §  370. 

may  defend,  in  her  own  right,  §  371. 

may  become  sole  trnder,  §  1811. 

as  sole  trader,  responsibilities  of,  §  1820. 


992  INDEX. 

MARRIED  WOMAN— Continued. 

proceedings  of,  on  application  as  sole  trader, 

§§  1812-1821. 
not  to  be  executrix,  unless  named  so  in  will, 

§  1352. 
escheated  estates,  §  1272. 
cannot  be  appointed  administratrix,    §  1370. 
not  to  be  witness  against    husband,  when,   § 
1881. 

See  Sole  Traders. 
MASCULINE,    convertible     with     feminine     and 

neuter,  §  17. 
MATERIAL   ALLEGATIONS   defined.    8  4fi.q. 
only,  need  be  proved,  §  1867. 
evidence  to  correspond  with,  §  1868. 
MATERIAL     OBJECTS    one  kind  of  evidence,  § 
1827. 
as  evidence,  admitted  in  discretion,  §  1954. 
jury  may  be  talien    to  view  the    premises,   § 
610. 
MATTER,  in  avoidance,  deemed    controverted,   § 
462. 
redundant,  may  be  stridden  out,  §  453. 
MAYORS,   act  relievin.u'  mayors  of  certain   cities 

from  acting  as  judge,  p.  798. 
MECHANICS,  property  of,  what  exempt  from  ex- 
ecution, §690. 
liens  of,  §§  1183-1199. 

See  Liens. 
MEMORANDUM  of  costs,  to  be  furnished,  §  1033. 

of  costs,  on  appeal,  §  1034. 
MERGER,  remedies  not  merged,  §  32. 
METES  AND  BOUNDS,  description  by,  §  455. 
MINER,  property  and  implements,   exempt  from 

execution,  §  690. 
MINING  CLAIMS,  customs,  rules,  and  usages  to 
govern,  §  748. 
liens  of  mechanics  upon,  §  1183. 
how  sold,  in  probate  proceedings,   §  1529. 
petition  for  sale,  §  1530. 
order  to  show  cause,  §  1531. 
order  of  sale,  §  1532. 
MINING    CUSl^OMS,   proof    of,   in    actions    con- 
cerning mining  claims,  §  748. 


INDEX.  993 

MINISTERIAL     OFFICERS,     election,     powers, 
and  duties  of.  §  2G2. 
conduct  of,  controllcHl  by  law.  §  128. 
See  Clerk. 
MINOR.    See  Infant;  Guardian  and  AYard. 
MINORITY,  effect  of,  on  limitation  of  actions,  §§ 

328,    352. 
MISCONDUCT  of    Jury,  ground    for    new  trial,  § 

657. 
MISDEMEANOR,   jurisdiction   of  justices   of  tbe 

peace,  §  115. 
MISJOINDER.    See   Parties;    Complaint. 

of  parties  or  causes,  ground    for    demurrer,  § 
430. 
MISTAKE,  relief  from,   may  be  had  by  amend- 
ment, §  473. 
in  written  agreement,  evidence,  §  1856. 
MITIGATION,  may  be  alleged  and  proved  in  li- 
bel and  slander,  §  461. 
MOB.  action  for  damages  bv,  §  340. 
MODIFICATION    of    award    by    court,   when,   § 
1288. 

See  Award;  Judgment. 
MONEY.    See  Gold  Coin. 

specitied  kind  of,  in  judgment,  §  667. 
MONO  COUNTY,  act  providing  additional  judge 

in,  p.  806. 
MONTH,  means  calendar  month,  §  17. 
MORTGAGE,  not  deemed  a  conveyance,  §  744. 
act  relating  to  service  of  final  process  on  cre- 
ation of  new  county,  p.  864. 
See  Foreclosure. 
MOTHER,  administration  by,  §  1365. 
death  of  child,  may  sue  for,  §  376. 
guardianship  by,   §  1751. 
injury  of  child,  may  sue  for,  §  376. 
seduction,  may  sue  for,   §  375. 
MOTIONS     AND     ORDERS,  generally,     §§  1033- 
1007. 
motion,  notice  of,  generally,  §  1005. 
motion,  notice  of,  when  to  be  given,  §  1005. 
motion,  wliat  it  is,  §  1003. 
motion,  where  made,  §  1004. 
notices,  service,  etc.,  §§  1010-1017. 
order  for  ])ayment  of  money,  execution  on,  § 
1007. 


994  INDEX. 

MOTIONS  AND  OllDERS— Coutinned. 
order,  service  by  teleijrapb,  §  1017. 
order  to  show  cause  must  be  served,  §  1005. 
order,  what  it  is,  §  1003. 
order,  where  may  be  made,  §  1004. 
repeating?  motion  prohibited,  §§  182,  183. 
special  proceedings,  in,  §  1064. 
transfer  to  another  judge,  §  1000. 
See  Orders. 
MUNICIPAL   CORPORATIONS.    See   City, 
venue  where  city  a  party,  §  392. 
act  relieving  mayors  of    certain  towns    from 
acting  as  judge,  p.  798. 
NAME,  change  of,  §§  1275-1279. 

change    of,   county  clerk  to  make  returns  to 

secretary  of  state,  §  1279. 
change  of,  county  court's  jurisdiction,  §  1275. 
change  of,  petition  for,  §  127G. 
change  of,  petition  for  service,  §  1277. 
change  of,  petition  for  hearing,   §  1278. 
complaint  must  contain,  §  426. 
fictitious,  may  be  used,  §  474. 
fictitious,  true  must  be  inserted  when  discov- 
ered, §  474. 
summons  to  contain,  §  407. 
verdict,  each  juror's  must  be  entered,  §  628. 
conveyances  by  persons  whose  name  changed. 
See  Civil  Code,  Appendix 
NB  EXEAT,  abolisned,  S  478. 
NEGATIVE     ALLEGATIONS,     when     may     be 

proved,  §  1869. 
NEGLECT  in  pleadings,  relief  from,  may  be  had 
by  amendment,  §  473. 
action  for  injury  or  death  caused  by,  §§  376, 

NEGLIGENCE,     relief    from,    may    be     had    by 

amendment.  §  473. 
resulting  in  injury  or  death,  who  may  sue  for, 

§§  376,  377. 
NEGOTIABLE  INSTUU:\[ENTS,   cross  demands, 

in  actions  on,  s  440. 
NEFTER,  included  in  masculine,  §  17. 
NEWLY  DISCOVERED    EVIDENCE,   new  trial 

for,  §6:i7. 


INDEX.  995 

NEW  MATTEii,  answer,  may  contain,  §437. 

answer,  in,  deemed  controverted,  §  402. 
NEW   PROMISE,   limitation,  effect  on,    §360. 
NEW  TKIAL,  amdavits,  on  motion,  §  650. 

aijainst  law,  verdict,  §  657. 

cliambers,  motion    may    be    heard   at,  §§  166, 
663. 

clianc-?,  jury  resortin.cr  to,  for,  §  657. 

damaijes,  excessive,  §  657, 

dama.ues,  insufficient,  §  657. 

detimtion   of,   §  656. 

excepted,  adverse  party  deemed  to  have,  §  647. 

grounds  for,  JJ  657. 

insutlicient  evidence,  verdict  on,  §  657. 

irregularity,  for,  §  657. 

minutes  of  court,  motion  on,  §  659. 

misconduct  of  jury,  for,  §  657. 

motion,  court  always  open  for,  §  73. 

motion,  court  may  .urant,  of  its  own,   §  661. 

motion,  hearino-,   §  660. 

motion,  mandamus,  in,  §  1092. 

motion,  notice  of,  §  659. 

motion,  notice  of,  waiver  of,  §  659. 

motion,  notice  of,  withdrawal  of,   §  659. 

motion,  papers  required,  §  658. 

motion,  prohibition  in,  §  1105. 

motion,  record  on,  §  661. 

newly  discovered  evidence,  for,  §  657. 
NONJOINDER.    See  Parties. 
NONJUDICIAL  DAYS.    See  Holidays. 

adjournment  to,  effect  of,  §§  134,  135. 

holidays,  what  are,  §  10. 

fallin.u-  on  Sunday,  §  11. 

time,  how  computed,  §  12. 

performance  of  acts  on  holidays,  §  13. 
NONRESIDENT,  place  of  trial,  in  actions  against, 
§  395. 

service  of  summons,  how  made  on,  §  413. 

pleadin.irs  of,  by  whom,  and  how  verified,  §  446. 

Avhen  allowed  to    open    judgment  by  default 
and  answer,  §  473. 

attachment,  vrhen  may  issue  against,  §  538. 

proof  required  of  plaintiff  in  action,  on  default 
of,   §585. 

summons    in  partition    suits,  how    served  on, 
§  757. 


996  INDEX. 

NON-RESIDENT— Continued. 

proceeds  of  sales  of  estates  of,  in  partition,  how 
invested,  §  788. 

duties  of  clerii  making-  sucli  investments,  §  791. 

service  of  notices  and  papers  on,  bow  made, 
§  1015. 

corporation,   to   furnish   securitv   for  costs,    § 
1036. 

effect  of  failure  to  furnish  such  security,  §  10.37. 

limitation,  on  time  to  claim  escheated  estate, 
§  1272. 

See  Absence. 
NONSUIT,  when    judgment    of,  may  be  entered, 

§581. 
NOTAKY  PUBLIC,  seal  or,  exempt  from  execu- 
tion,  §  690. 

may  administer  oath  or  affirmation,   §  2093. 

may  talve  deposition,  in  this  State,  §  2031. 
NOTICE,  after  appearance  in  action,  who  entitled 
to,  §  1014. 

effect  of,  on  priority  of  liens,  §  1186. 

for  inspection  of  boolvs  and  documents,  §  1000. 

how  construed  wiien  written,  §  1865. 

insufficiency  of,  no  ground  for  dismissal  on  ap- 
peal.  §  954. 

must  be  in  writing,  §  1010. 

without  titl',  when  valid,  §  1046. 

not  required,  to  vacate  order  made  out  of  court, 
§937. 

of  motion,  at  what  time  to  be  given.   §  1005. 
Service  of. 

how  and  on  whom  made,  §  1010. 

manner  of  making.  §  1011. 

by  mall,  when  made,  §  1012. 

by  deposit  m  postoffice.   §  1013. 

when,  need  not  be  made,   §  1014. 

on  attorney,  when  to  be  made,  §  1015. 

on  nonresident,  how  made.  §  1015. 

service  by  telegraph,  §  1017. 
In  actions. 

of  abstract,  provided  in  partition,  §  799. 

of  application  for  injunction,   when  required, 
§  528. 

of  injunction,  to  be  given  to  corporation,  §  531. 

of  motion  to  vacate  injunction,  §  532. 


INDEX.  997 

NOTICE— Con  tinned. 

of  lis  pendens,  to  be  tiled  in  real  actions,  §  409. 

to  be  served  on  lien-holders  in  partition,  §  762. 

to  tenant,  on  unlawfnl  detainer,  §  llGl. 

to  tenant,  at  will  or  by  sutt'erance,  §  llGl. 

of  motion,  for  survey  of  lands,  §  742. 

of  security,  for  costs  required  of  nonresidents, 
§  1037. 

of  aiTest  of  defendant  in  justices'  courts,  §  864. 

of  change  of  attorney,  in  actions,  §  285. 

to  produce  written  instrument  in  evidence,   § 
1938 

of  filing  award,  §  1286. 

on  return  of  jury  for  instructions,   §  614. 

of  sale  under  execution,  how  given,  §  692. 

of  claim  to  contribution,  on  execution,  §  709. 

of  motion  for  new  trial,  to  be  filed  and  served, 
§659. 

of  appeal,  what  to  state,  and  when  to  be  serv- 
ed, §940. 

of  appeal,  in  justices'  and  police  courts,  §  974. 
In  special  proceedings. 

of  application  for  mandate,  §  1088. 

of  application  for  writ  of  review,  §  1069. 

of    application  for    discharge  from   imprison- 
ment, §  1144. 

of    application    for    discharge,  how    served,  § 
1145. 

of  hearing  petition  for  probate,  §  1303. 

of  probate  of  foreign  will,  §  1323. 

of    application  for    letters  of    administration, 
^^5  1373. 

to  creditors,  to  present  claims,  §  1490. 

of  application  as  sole  trader,  iJ  1812. 

of  taking  deposition  out  of  State,  §  2024. 

of  taking  deposition  in  State,  §  2031. 
NUISA.XCE,  defined,  actions  for,  §  731. 

generally,   §  731. 

jurisdiction,  district  court,  §§  76,  731. 

jurisdiction,  supreme  court,  §  52. 
NUMERALS,  mnv  be  used,   §  186. 
NUNCUPATIVE  WILLS,  proceedings  in  probate 
of,  §§1344-1346. 

See  Wills. 

Code  Civ.  Proc— 81. 


99S  INDEX. 

OATH,  form  of,  §§  2095,  2096. 

form  may  be  varied,  how,  §  2095. 

form  of,  in  discretion  of  court,  §  2096. 

includes  affirmation  and  declaration,  §  17. 

affirmation,  §§  2093-2097. 

affirmation,  lorm  of,  §  2097. 

affirmation,  or  oath,  necessary,  §  1846. 

may   be    administered    by  courts  of    justice, 

§128. 
may  be  administered  by  judicial  officers,  §  177. 
by  court  commissioners,  §  259. 
judicial  and  other  officers,  §  2093. 
arbitrators  may  administer,  §  1284, 
in  general,  who  may  administer,  §  2093. 
how  administered,  §  2094. 
of  atorney  and  counselor,  §  278. 
of  jury,  form  of,  §  604. 
of  executors  and  administrators,  §  1387. 
of  prisoner,  confined  on  civil  process,  form  of, 

§  1148. 
of  official  reporter,  §  272. 
how  administered,  §  2094. 

administered  by  whom,  §§  128,  177,  259,  2093. 
administered,  how,  §  2094. 
administrator,  of,  §  1387. 
affirmation,  equivalent  to,  §  2097. 
arbitrators  may  administer,  §  1284. 
attorney,   of,   §  278. 
executors,  of,  §  1387. 
OBJECTIONS,  waived  if  not  taken  by  demurrer 

or  answer,   §  434. 
inpractice,  when  taken  by  demurrer  or  answer, 

§433. 
when  not  taken,  deemed  waived,  §  434. 
to  appointment  of  referee,  how  tried,  §  642. 
to    granting    letters    of    administration,  when 

filed,   §1351. 
may  be  taken  to  dissolution  of  corporation,  § 

1231. 
OBLIGATION.,  arises  from  contract  or  operation 

of  law,  §  26. 
defined.  §26. 
OCCUPANT,   of  real  property,   in  forcible  entry 

and  detainer,  §  1160. 

See  Limitation  of  Actions. 


INDEX.  999 

OFFER  TO    COMPROMISE,   admits   nothing,    § 
2078. 
generally,  §998. 
proceedings  on,  §  997. 
is  not  an  admission   that  anything  is  due,   § 

2078. 
in  justices'  courts,  §  895. 
OFFjlOE,  abolished  by  the  code,  §  7. 
tenure  of  office  preserved,  §  6. 
usui-pation  of,  proceedings  as  to,   §§  809,  810. 
vacancy  in  office  of  judge  does  not  affect  pro- 
ceedings, §  184. 
vacancy  in    office,  not    to    affect    proceedings, 

§184. 
vacancy  in  office  of  supreme  court  justice,   § 

42. 
vacancy  in  office  of  judge  of  superior  court, 

§69. 
vacancy  in  offico  of  justice  of  peace,  §  111. 
See  Public  Officers;  Usurpation  of  Office. 
OFFICERS,  majority  may  act,  §  15. 
ministerial,  §§  128,  262. 
judicial,  affidavits,  etc..  taking,  §  179. 
judicial,   contempt,  power  in  cases  of,   §§  178, 

1209. 
judicial,  controlling  power  of  courts  over,  §  128. 
"judicial,  depositions,  taking,  §  2021. 
judicial,  exempt  from  juries,  §  200. 
judicial,  generally,  §  156. 
judicial,  powers,  etc..  of,  §  176. 
of  court  of  impeachment,  §  38. 
ministerial,  elections  and  terms,  §  262. 
actions  for  usurpation  by,   §  803. 
ministerial,   elections,   etc.,   where  provided,   § 

262. 
judicial,  incidental  powers  of,  §§  176-179. 
OFFICIAL  DOCUMENTS,   how  proved,   §  1918. 

See  Public  Records. 
OLOGItAPHIC  WILL,  how  proved,  §  1309. 
OPINION,  of  supreme  court,  to  be  in  writing,  §  49. 
ORAL  EXAMINATION,  defined,  §  2005. 
See  Examination  of  Witnesses. 


1000  INDEX. 

ORDER.    See  Motions;  Order  of  Arrest, 
deflnition,    §  1U03. 

definition,  in  special  proceedings,  §  1064. 
where  made,  §  1004. 
transfer  of,  to  show  cause,  §  1006. 
may  be  enforced,  §  177. 

for  payment  of  money,  how  enforced,   §  1007. 
second  application  for,  refused,  §  182. 
how  reviewed,  §  936. 

made  out  of  court,  may  he  vacated,  §  937. 
duty  of  supreme  clerli,  on  appeal  from,  §  958. 
in  superior  courts,  what  appealable,  §  963. 
may  be  served  by  telegraph,   §  1017. 
for  new  trial,   in   supreme  court,   costs   on,    § 

1027. 
copy  of,  to  be  filed  in  eminent  domain,  §  1253. 
copy  of,  to  form  part  of  judgment  roll,  §  670. 
judicial,  effect  of,  §  1909. 
In  actions, 
relief  from  inadvertence  or  mistake,  §  473. 
relief  from  neglect  or  surprise,  §  473. 
to  show  cause  in  injunction,  §  530. 
for  investment  of  funds  in  hands  of  receiver, 

§569. 
for  sale  of  property  attached,  §  548. 
to  deposit  money  in  hands  of  trustees,  §  572. 
to  deposit  money  in  treasury.  §  573. 
enforcement  of  order  of  deposit,  §  574. 
discharging  sick  juror,  §  615. 
granting  or  refusing  new  trial,  deemed  except- 
'  ed  to,"^  §  647. 
disobedience  of.  in  supplementarv  proceedings, 

§  721. 
for  survey  of  lands  in  real  actions,  §  742. 
for  surve3\  what  to  contain,   §  743. 
of  sale  in  foreclosure,  §  728. 
aranting  or  refusing  new  trial,  appealable,   § 

939. 
dissolving  attachment,  effect  of  appeal  from, 

§946. 
of  superior  court,  for  transmission  of  appeal 

papers,  §  977. 
for  inspection  of  documents,  §  1000. 
dismissing  action   for   want   of   new   security, 

§  1037. 


INDEX.  1001 

ORDER— Continued. 
In  special  proceedings, 
requiring  debtor  to  appear  and  answer,  §  714. 
for  examination  of  debtor  of  debtor.   §  717. 
for  application  of  property  of  such  a  one,  §  719. 
for  trial  of  issue  in  mandate,  what  to  state, 

§  1090. 
of  discharge  of  person  imprisoned  on  civil  pro- 
cess, §  1149. 
committing  for  contempt,   §  1222. 
on  application  for  dissolution  of    corporation, 

§  1230. 
final,  for  condemnation  of  land,   when  made, 

§  1253. 
in  relation  to  escheated  estates.  §  1269. 
changing  name  ot  person,  §  1278. 
on  submission  to  arbitration,  §  1283. 
of  new  hearing  by  arbitration,  §  1287.  ' 
to  custodian  to  produce  will,   §  1302. 
to  show  cause  why  probate  should  not  be  re- 
voked. §  1328. 
of  right  to  administration,  precedence,  §  1365. 
for  probate  sales,  §§  1516-1576. 
See  Motions. 
ORDER  OF  ARREST,  how  obtained,  §  481. 
what  required  to  obtain,    §  482. 
in  justices'  court,  when  made,  §  861. 
See  Arrest  and  Bail. 
ORDER  OF  PROCEEDINGS,  on  trial  of  action, 
§607. 
powers  and  duties  of  courts.  §  128. 
courts  may  make  rules,  §  129. 
powers  of  .iucl2:es  at  chambers,  §§  165,  166. 
ORIGINAL  EVIDENCE,  defined,  §  1829. 
ORIGINAL   JURISDICTION,    of   supreme   court, 
§51. 
of  superior  court.  §  76. 
PAPERS,  filing  and  service  of,   §^  1010-1017. 
lost  papers,  how  supplied,  §  1045. 
what  papers  valid,  §  1046. 

to  be  furnished  by  appellant,  on  appeal,  §  950. 
copies  of,  to  be  certified,  §  953, 
what  may  be  taken  l)y  jury,  on  retiring,  §  612. 
See  Notice. 
PARTIAL  EVIDENCE,  defined,  §  1834. 


1002  INDEX. 

PAPwTIALITY,    of  judge,    ground   for   change  of 

venue,  §  397. 
PARTICULARS,  obtaining  bill  of,  §454. 
PARTIES,  abatement  by  death,  etc.,  §  385. 

addiup",  §§  389,  473. 

administrator,  action  by  on  bond  of  former  ex- 
ecutor, etc.,  may  sue  in  his  own  name  alone, 
§  1586. 

administrator  may  sue  witliout  beneficiary. 
§369. 

appeal,  adverse  party  on,  who  is,  §  938. 

assignment  of  chose  in  action,  etc.,  §§  368,  385. 

association,  suing,  §  388. 

banliruptcy,  §  384. 

beneficially  interested,  to  sue,  §  367. 

beneficiary  need  not  be  joined,  when,  §  369. 

bills  of  exchange,  parties  may  be  sued  togeth- 
er, §383. 

child,  injury  or  death  of,   §  376. 

common  interest,  one  may  sue  for  all,   §  382. 

common  source,  holding  under,  may  join,  §  381. 

coparceners,  §§  381,  384. 

death  of,  §  385. 

death  by  negligence,  §  377. 

death  of  child,    §376. 

defendants,  all  persons  interested  may  be,  §§ 
379,  382. 

defendants,   substitution  of,   §  386. 

defendants.    See  Defendants. 

designation  of,  §  308. 

different,  suing  in  one  action,  §  383. 

disability,   §  385. 

ejectment,  §§  380,  381. 

eminent  domain,  §  1246. 

estopped,  who  are,  §§  1908-1910. 

executor,  etc.,  action  by,  for  injury  or  death, 
§  377. 

executor  may  sue  without  beneficiary,  §  369. 

executor,  only  those  to  whom  letters  issued 
need  be  joined.  §  1587. 

forcible  enti-v,  etc.,  §  1164. 

husband   and   wife,    §§  370,   371. 

infants,   §§  372.  373,   1722. 

injury  of  child,  §  376. 

interest,  in,  when  to  be  joined,  §§  380,  382. 

interest,  real  party  in,  to  sue,   §  367. 


INDEX.  1003 

rARTIES— Continued. 

intervention,  §  387. 

joint  debtors,  proceedings  against  parties  not 
served  after  ludgment,  §§  989-994. 

joint  tenants,  §§  381,  384. 

landlord  may  be  made  defendant,  §  379. 

marriage,  §  384. 

married  woman,    §§370,  371. 

raeclianies'   liens,   etc.,   §  1196. 

misjoinder  of,  demurrer  for,  §  430. 

names  of,  in  complaint,  §  420. 

names  of,  in  summons,  §  407. 

negligence  causing  injury  or  death,  §§  376,  377. 

nonjoinder  of  demurrer  for,  §  430. 

numerous  parties,  one  or  more  may  sue  or  de- 
fend for  all,  §  382. 

partition,  §§752,  754,  761. 

plaintiffs,  all  persons  interested  may  be,  §§ 
378,  382. 

possession,  joining  persons  in  with  persons  out 
of,  as  defendants,  §380. 

promissory  note,  parties  may  be  sued  together, 
§383. 

quieting  title,   joinder,    §  381. 

redeem,  suit  to,  §  346. 

refusal  to  loin  as  plaintiff,  §  382. 

seduction,   §§  374,  375. 

separate  property,  §  370. 

severally  liable,  parties  on  written  instrument 
in  one  action,  §  383. 

several  owners  joining,  §  381. 

special  proceedings  in,  §  1063. 

statute,  person  authorized  by,  may  sue  with- 
out joining  beneficiai-y,  §  369. 

stril^ing  out,   §  473. 

substitution  of  defendant,  §  386. 

sureties  liable  on  separate  instruments  may  be 
sued  in  one  action,  §  383. 

tenants  in  common,  joint  tenants,  coparceners, 
owners  in  severalty  joining  as  plaintiffs,  §§ 
381,  384. 

trustee  may  sue  without  beneficiary,  §  369. 

unlinown,  mav  be  described  by  fictitious  names, 
R474. 

usurpation  of  oflice  or  franchise,  §  803. 

venue  where  city  or  county  a  party,   §  394. 


1004  INDEX. 

PARTITION,  abstract  of  title,  and  expense  there- 
of, §§  799,  800. 

allowance  for  expenditures  for  common  bene- 
fit,  §798. 

answer,  §  759. 

complaint,  §§  753,  754. 

contingent  interests,  §  781. 

costs,   §§  796,  798. 

costs  of  previous  litigation,   §  798. 

conveyances,  §  785. 

conveyances,   recording,    §  787. 

disbursements,  interest  on,  §  801. 

expenses,  apportioning,  §  768. 

expenses  incurred  for  common  benefit,   §  798. 

generally,  §§  752-801. 

guardian,  consent  by,  §§  795,  1772. 

incumbered  property,  §  771. 

infant's  shares,  §§793,  1772. 

Intervention,  §  387. 

investments  by   clerk,    §  791. 

judgment,  §  766 

judgment,  enforced  how,  §  686. 

lien  on  undivided  interest,  §  769. 

lien-holder,  marshaling  properties,  §  772. 

lien-holder,  purchaser,  §  786. 

lien-holder,  recorded  rights,  §§  754,  761,  762. 

life  or  years,  estate  for.  how  set  out,  §  770. 

life  or  years,  tenants'  compensation,  §§  778, 
779. 

lis  pendens  must  be  filed,  §  755. 

lunatic's  shares,  §§  794,  1772. 

order,  for,   §§763,  764,  770-795. 

partial,  §  760. 

parties,   §§367,  389,  752-754. 

purchasers,  not  referees  or  guardians,  §  783. 

referee,  §§761,  762. 

referee,  report  of,  §  765. 

referee,  report  of,  judgment  thereon,  §  766. 

referee,  single,   §  797. 

rights  of  all  parties  may  be  determined,  §  759. 

roads,  §  764. 

sale,  §§  763,  764. 

sale,   confirmation,   §  785. 

sale,  credit,  on  security,  §  777. 

sale,  lots,  §782. 


INDEX.  1005 

PARTITIOX— Coiitinuod. 

sale,   proceeds,    inoiimbored    property.     §§  771- 

774. 
sale,  public,  to  be,  §  77."), 
sale,  referee's  report  of,  §  784. 
sale,  terms  of,  court  to  direct,  §  770. 
sale,  terms  of.  to  be  published,  §  782. 
securities,  §  700. 
summons,   §  756. 

summons,  service  by  publication,  §  757. 
tenant,   for  years  less  than  ten  not  affected, 

§767. 
tenant,  unlcnown,  §§  780.  788,  789. 
town  site,  §  763. 
unequal  compensation.  §  792. 
I'ARTNER,  administratrix  cannot  be,  §1365. 
sued  by  firm  name,  §  388. 
rij?hts  in  estate  of  deceased.  §  1585. 
insolvency    of   firm.    See   Insolvency. 
I^ENAT/PY.     See    Contempt:     Forfeiture;   Impris- 
onment, 
attachment  for  not  producing-  will,  §  1302. 
disobeying  mandate,  §  1097. 
failing  to  produce  will,  §  1298. 
fines,  actions  for,  in  police  court,  §  932. 
fines,  for  contempts.  §  1218. 
fines,  juror  not  appearing.  §  238. 
fines,  on  state  officers.  §  1007. 
fines,  usurpation  of  office.  §  809. 
practicing  as  attorn ev  without  a  license,  §  281. 
PENDENCY  OF  ACTION,   when  action  deemed 
pending,   §  1049. 
notice  of,  to  be  filed  in  real  actions,  §  409. 
as  a  ground  for  demun-er  to  subsequent  suit, 
§  430. 
PENDING,   action  when  deemed.   §  1049. 
PEOPLE,  execution  to  be  in  name  of,  §  681. 
do  not  give  security,  §  529. 
state,  or  state  officer,  does  not  give  security. 
§  1058. 
PERFORMANCE,    of   conditions   precedent,    how 
averred,  §  457. 
time  of,  of  act,  may  be  extended,  §  10.54. 


1006  INDEX. 

PERPETIIATTNG     TESTIMONY,     mode     of,     §§ 
2083-2087. 
deposition,  when  may  be  produced,  §  2088. 
effect  of  deposition,   §  2089. 
PERSON,  defined,  wliat  it  includes,  §  17. 
PERSONAL  INJURY,  who  may  sue  for,   §§374- 

377. 
PERSONAL  PROPERTY,  defined,  §  17. 
how  attached,  §  542, 

when  may  be  sold  under  attachment,   §  550. 
order  for  sale  of,  §  548. 
trial  of  claim  of  third  person  to,  §  549. 
PESTILENCE,  ground  for  removal  of  court,  §  142. 
PETITION,  for  change  of  name,  what  must  spec- 
ify, §  1276. 
must  be  published  four  weeks.  §  1277, 
for  sole  trader,  what  to  contain,  §  1813. 
petitions  in  probate  proceedings.  §§  1371,  1397. 
petitions  for  sales  of  property  in  probate,   §§ 
1518,  1530    1537. 
See  Wills;  Probate  of  Wills;  Executors  and  Ad- 
ministrators. 
PETIT  LARCENY,  jurisdiction  in  justices'  courts, 

§  135. 
PHONOGRAPHIC     REPORTERS,     appointment, 
§  269. 
attendance,  personal  required,  §  273. 
compensation,  §  271. 
duties,    §  269. 

evidence,  transcript  of  notes  prima  facie,  §  270. 
none,  clerk  to  take  down  testimony,  §  1051. 
oath,    §  274. 

report,   prima  facie  evidence,   §  270. 
qualifications,  testing,  §  272. 
PHRASES,  how  construed,  §  16. 
PHYSICIAN,  not  subject  to  jury  duty,  §  200. 
what  propertv  of,   exempt  from   execution,    § 

690. 
when  disqualified  as  a  witness,  §  1881. 
when  must  testifv,  §  1882. 
PLACE  OF  HOLDING  COURTS,  when  may  be 
changed,  §  142, 
a  PI »t  ■.•!  ranee  of  pin  oe  a  ppointed  compulsory,  §  143. 
when  judge  may  order  rooms,  etc.,  §  144. 


INDEX.  1007 

PLACE  OF  TRIAL,  affidavits  as  to  prejudice  of 
judg-j,  §  170. 

change  of,   defendants   must   demand,   on  ap- 
pearing:, witli  attldavit,   §  39G. 

change  of,   exception  deemed  talven,   when,   § 
647. 

change  of,  fees,  §399. 

change  of,  generally,  §  397. 

change  of,  jurisdiction,  §  399. 

change  of,  real  estate,  docketing  and  record- 
ing judgment,  §  400. 

change  of,  transmission  of  papers,  §  399. 

change  of,  what  court  to,  §  398. 

counties,  actions  against  or  between,   §  394. 

county,  any,  unless  change  demanded,  §  396. 

defendant's  residence,  generally,  §  395. 

depart  from  state,  where  defendant  about  to, 
§  395. 

foreclosure,  local,  §  392. 

forfeiture,  action  for  local,  §  393. 

judges,   when   disqualified,   §  170. 

local,  when,  §§  392,  393. 

officer,   or  person   aiding  him,   action   for  act 
done  by  vu'tue  of  oflBce,  §  393. 

partition,  local,   §392. 

penalty,  action  for,  local,  §  393. 

probate  proceedings,  transfer  of,  §§  397,  1431- 
1433. 

real  property,  injuries  to  local,  §  392. 

where  city  or  county  a  party,  §  392. 

where  injunction  prayed,  §  392. 

real   property,    mandamus    for    sheriff's   deed 
not  local,  §  392  n. 

real  property,  recovery  of,  etc.,  local.   §  392. 

reside,   generally  where  defendants,   §  395. 

residence  out  of  state  or  unknown,  §  395. 
witnesses,  preponderance  of,  §  397. 
wrong  county,  action  brought  in,  §  397. 
PLEADINGS.    See    Allegations;    Answers;   Com- 
plaint; Demurrers;  Defenses;  Verification, 
account,  §  454. 
allegations,  material,  §§  462,  463. 


1008  INDEX. 

PLEADINGS— Continued. 

allegations,  not  denied,  admitted,   §  462. 

allowed,  what,   §  422. 

amendment,  etc.,  §§  128,  432,  472,  473. 

amendment,  material  variance,  how  provided 
for,  §  469. 

amendment,  immaterial,  how,  §  470. 

amendment  what  not  a  variance,   §  471. 

amendments  of  course,   §  472. 

amendment  by  the  court,  enlarging  time,  etc., 
§473. 

amendment  suing  by  fictitious  name,  §  474. 

amendment,  errors  and  defects,  when  disre- 
garded, §  475. 

amendment,  forms  of,  in  justices'  courts,  §§ 
851-860. 

amendment,  forms  of,  in  police  courts,  §  961. 

amendment,  when  heading  defective,  §  1046.    j 

amendment,  lost,  how  supplied,  §  1045.  i 

amendment.     See  Amendments. 

answer.     See  "Answer,"  §  437. 

board,  determination  of,   §  456. 

conditions  precedent,  performance  of,  §  457. 

complaint,  amended  answer  to,   §  432. 

complaint.     See  Complaint. 

construction  to  be  liberal,   §  452. 

counter-claim.      See   Counter-claim. 

cross-complaint.     See  Cross-complaint. 

defects  disregarded,  §  475. 

definition  of,"§  420. 

demurrer.     See  Demurrer,  §§  430,  443. 

determination   of   court   or  board,    §  456. 

facts,  ultimate,  not  probative,  not  conclusions 
of  law  to  be  pleaded,  §  426. 

fictitious   names,    5  474. 

filing.  §  465. 

forms  of,  §  421. 

forms  of,  justices'  courts,  §§  851-860. 

forms  of.  police  courts,  §  961. 

heading  defective,  §  1046. 

irrelevant  matter,  striking  out,  §  453. 

items,  need  not  be  pleaded,   §  454. 

joint  debtors,  after  judgment,  proceedings, 
§  003. 


INDEX.  1009 

PLEADINGS— Continued. 

judgment,  how  pleaded,  §  456. 

jnd.umeiit  roll,  part  of,  §  070. 

libel  and  slander,  §§  4G(),  461. 

limitations  of,  statute,  bow  pleaded,  §  458. 

lost,  bow  supplied,  §  1045. 

material   allegations   not   controverted,   admit- 
ted,   §462. 

name,  fictitious,  §  474. 

objections  to,  wben  waived,  §  434. 

particulars,  §  454. 

real  property,   conditions     precedent,    convey- 
ance, §  457. 

real  property,  description,  §  455. 

redundant  matter,  striking  out,  §  453. 

separately  stated,  causes  of  action  must  be,  § 
427. 

separately  stated,  defenses  must  be,  §  441. 

service,   §  465. 

sham,  stril^ing  out,  §  453. 

signature  to.  §  446. 

slander  and  libel,  §§  460,  461. 

statute,  private,  how  pleaded,  §  4.59. 

striking  out,  as  sham,  irrelevant  or  redundant, 
§453. 

supplemental,  §  464. 

variance,  §§  469-471. 

verification,    §§    446-449. 

written  instruments,  inspection  refused,  §  449. 

written  instruments,  setting  forth,  §§  447-449. 
I*LUKAL.   includes  singular,   S  17. 
POLICE  COURTS,  actions  in,  §§  929-933. 

appeals  from  may  be  taken,  §  77. 

establishment  of,  §  121. 

to  have  seal,  §  147. 

jurors,   how   summcued   in,    §  250. 

manner  of  impaneling,  §  251. 

act  transferring  business  and  records  to  after 
new  constitution,  p.  865. 
Proceedings  in  civil  actions  in. 

how  commenced,  §  929. 

pleadings  in,   §§  930-931. 

summons  must  issue,  when,  §  930. 

defendant  may  plead  orally  or  in  writing,   5 
931. 
Code  Civ.  Proc— 85. 


1010  INDEX. 

POLICE  COURTS— Contiuued. 

trial  by  jiuTj  wheu  defendant  entitled  to,   § 
932. 

proceedings   to   be   conducted   as    in   justices' 
courts,  §933. 

appeals   from   judgments  of,    §  974. 
POLICE  JUDGE,   may     take     aclinowledgments 
and  affidavits,  §  179. 

See  Judicial  Officers. 
POSSESSION  OF  LAND,  when  presumed,  §323. 

occupation  deemed,   under  legal  title,   §  323. 

occupation  when  deemed  adverse,  §  324. 

what  adverse  possession,  under  written  instru- 
ment, §  325. 

actual  occupation  under  claim  of  title  deemed 
adverse,  §324. 

adverse  possession  under  unwritten  claim  of 
title,  §325. 

possession  of  tenant,  when  deemed  possession 
of  landlord,  §  326. 

limitation  of  adverse  possession    of  tenant,  § 
327. 

right  of,  not  affected  by  descent  cast,  §  328. 

certain  disabilities  excluded  from  time  to  com- 
mence actions,  §  328. 

bond  on  appeal  from  order  directing  alias  writ 
of  possession.  §  1210. 
POSTPONEMENT.      See    Adjournment;    Contin- 
uance. 

of  civil  trial,  §  595. 

costs  may  be  imposed.  §  1029. 

forcible  entry,  etc..  §  1173. 

mandamus  on,  §  1090. 

trial,  §§  595,  596. 

trial,  justice's  court.  §§  874-876. 

trial,   commission,  return  of,   §  2027. 
POWER  OF  COURT,   amendment,   §  128. 

contempt,   §§   1209-1222. 

oaths,   administration  of,   §  128. 

obedience,   compelling,   §  128. 

officers,  etc.,  controlling,   §  128. 

order   enforcing,    §  128. 

process  controlling,   §  128. 

supreme  court  on  appeal.  §  53. 


< 


INDEX.  1011 

POWER  OF  COrRT— Continued, 
witnesses,   coercing;,   §  128. 
of  supreme  court  justices  at  chambers,  §  165. 
of  judges  of  superior  courts,  §  166. 
PRACTICE.     See  Trial. 
PRESENT  includes  future,  §  17. 
PRESUMPTIONS,   deliued,   §1959. 
binding  on  jury,  §  1961.. 
conclusive,  §  1962. 
conclusive,     estoppel     by,     "Standing     by,"   § 

1962. 
conclusive,  generally.  §  1962. 
conclusive,  guilty  intent,  when,  §  1962. 
conclusive  judgment,   §§  1908,  1962. 
conclusive,   legitimacy,    §  1962. 
conclusive,  malicious  intent,  when,   §  1962. 
conclusive,  order  of  court,  §§  1908,  1962. 
conclusive,  recital,  §  1962. 
conclusive,  tenant  cannot  denv  landlord's  title, 

§  1962. 
disputable,  §§1961,  1963. 
disputable,   acquiescence,    §  1963. 
disputable,  books,  contents  of,  correct,  §  1963. 
disputable,  burial  ground,   §  1963. 
disputable,   consequence    of     act     intended,    § 

1963. 
disputable,  continuance  of  thing,   §  1963. 
disputable,     consideration     from     writing,      § 

1963. 
disputable,   course     of     business,   ordinary,    § 

1963. 
disputable,  course  of  nature,  or  habits  of  life, 

ordinary,  §  1963. 
presumption,   disputable,  date,   correct,   §  1963. 
presumption,   disputable,   death  of  person  not 

heard  from  for  seven  years.   §  1963. 
presumption,  disputable,     death  priority  of,   § 

1963. 
presumption,      disputable,     delivery      imports 

ownership  of  deliveree,   §  1963. 
presumption,   disputable,   fairness     of  private 

transactions,  §  1963. 
disputable,    foreign   court,    etc.,    acting   within 

jurisdiction,    §  i963. 
disputable,  generally,  §  1963. 


1012  INDEX. 

PRESUMPTIONS— Continued. 

disputable,  lii.!;lier  evidence  is  adverse,  if  low- 
er  produced,    s  1963. 

disputable,  identity,  §  1963. 

disputable,   indorsement     of  note,   etc.,  where 
made.  §  1963. 

disputable,  innocence,   §  1963. 

disputable  issue,  all  matters  in,  passed  upon, 
§  1963. 

disputable,  law  has  been  obeyed,  §  1963. 

disputable,  legitimacy.  §  1963. 

disputable,  letters  mailed,   §  1963. 

disputable,   marriage,   §  1963. 

disputable,   monev  paid  to  a  person  was  due 
to  him,  §  1963. 

disputable,  non-conclusive  judicial  record  cor- 
rect,  §  1963. 

disputable,   obligation  delivered     up     paid,    § 
1963. 

disputable,  official    duty     duly     performed,     § 
1963. 

disputable,  partnership,   §  1963. 

disputable,    possession    imports    ownership,    § 
1963. 

disputable,    public    officer    de    facto,    appoint- 
ment of,  §  1963. 

disputable,  rent,  last  receipt  for,  §  1963. 

disputable,   short-hand  notes,   §  270. 

disputable,     suppressed     evidence     adverse,   § 
1963. 

disputable,  trustee,  bare,  has  conveyed  to  ces- 
tui que  trust,   §  1963. 

disputable,  unlawful  intent,  §  1963. 

disputable,  writing  thirty  years  old,  §  1963. 

disputable,  jury  must  find  according  to,  §  1961. 

survivorship,  presumptions  as  to,   §  1963. 

no  presumption  that  error  injurious  on  appeal, 
§475. 
PRIEST,  when  may  be  excused  from  testifying, 
§  1881. 

when  must  testify,   §  1882. 
FRIMARY  EVIDENCE,  defined,  §§  1829,  1833. 

as  to  third  parties,  §  1851. 

entries  on  public  records  are,  §  1920. 

entries  in  justices'  docket  are,  §  912. 


INDEX.  1013 

PRIMAIIY  FA'IDENCE— Continued. 

books,  maps,  and  charts,  when,   §  1936, 
certitieate  of  purchase  or  location  of  lands  is, 

§  1925. 
entry    made   by    officer,    or   board    of   officers, 

when,  §  1926. 
handwritini?  and  entries  of  deceased,  §  1946, 
PRINCIPAL  AND  AGENT.     See  Agent. 
PRINTING,  included  in  writing,   §  17. 
PRIVATE  PROPERTY,  Avhat  may  be  taken  for 
public  use.  S§  1240,  1241. 

See  Condemnation  of  Land. 
PRIVATE    SITTINGS  of    court  in  certain    cases, 

§125. 
PRIVATE  STATUTE,  defined,  §  1898. 
how  pleaded,  §  459. 
foreign  law-books  admissible     in     evidence,  § 

1900. 
recitals  in,   how  far  evidence.   §  1903. 
PRIVATE   WRITINGS,     See   Writings, 
classification  of,  §  1929. 

distinction  between  sealed  and  unsealed,  abol- 
ished, §  1932. 
execution  of  instrument  defined,  §  1933. 
compromise   of   debt     without   seal,      good,    § 

1934. 
subscribing  witness  defined,   §  1935. 
books,  maps,  etc.,  how  far  evidence,   §  1936. 
original  writing  to  be  produced  or  accounted 

for.  §  1937. 
notice  to  be  given  to  produce,  §  1938. 
writings   called   for   and     inspected    may     be 

withheld,   §  1939. 
execution   of,   how  proved.    §  1940, 
when   other  than  subscribing     witness     may 

testify,  §  1941, 
when  evidence  of  execution     not     necessarv, 

§  1942, 
evidence  of  handwriting,  to  prove,  §  1943, 
of  handwriting  allowed  by  comparison,  §  1944, 
comparisons  with,  what  may  be  made,  §  1945. 
entries  of  decedents  as  evidence,   §  1946, 
copies  of  entries.    §  1947, 
how  acknowledged  and  certified,   §  1948, 
public  records  not  to  be  carried  about.  §  1950, 


1014  INDEX. 

PRIVATE  WRITINGS— Continued. 

what  may  be  read  in  evidence,  §  1951. 

public  records  of,  how  proved,  §  1919. 
PRIVILEGED    COMMUNICATIONS,    §  1881. 
PROBATE  COURTS.     See  Courts. 
PROBATE    PROCEEDINGS. 

wills.    See  Wills. 
Jurisdiction  and  proceedings  in  general. 

in  superior  court,  §  76. 

when  exercised  over  estates,  §  1294. 

when  decided  by  first  application,  §  1295. 

court  may  determine  all  questions  as  to  ad- 
vancements,   §  1686. 

orders  and  decrees  to  be  entered  in  minutes, 
§  1704. 

how  often  publication  to  be  made,  §  1705. 

recorded  decree  or  order  to  impart  notice,   § 
1706. 

citation,   how  directed,   and  what  to  contain, 
§  1707. 

when  issued  without  order  of  judge,   §  1708. 

citation,  how  served,  §  1709. 

citation,    when   a  substitute   for   personal   no- 
tice, §  1710. 

to  be  served  five  days  before  return,  §  1711. 

published   description   of  real   estate,    §  1712. 

practice  and  proceedings  in,  §  1713. 

new  trials  and  appeals  in,  §  1714. 

appeal  to  be  taken  within  sixty  days,  §  1715. 

from  what  proceedings  an  appeal  lies,  §  969. 

effect  of  judgment  in,   §  1008. 

issues  joined  in,  how  tried  and  disposed  of,  § 
171G. 

court  to  trv  cause  when  no  jury  demanded,  § 
1717. 

new  trial,  how  and  when  moved  for,  §  1717. 

court  to  appoint  attorney  for  minor  or  absent 
heirs,  etc.,  when.  §  1718. 

compensation  for  attorney  of  absentee,  §  1718. 

decree  relating  to  homestead  and  effect  there- 
of, §1719. 

costs,  by  whom  paid  in  certain  cases,  §  1720. 

court  may  remove  executor,  etc.,  for  contempt, 
§  1721. 

service  of  process  on  guardian,  §  1722. 


INDEX.  1015 

PROBATE    PROCEEDINGS— Continued. 

Jurisdiction,  etc. — 

court  may  order  investment  of  moneys  of  es- 
tate, §1792. 

probate  proceedings  to  be  given  preference  on 
appeal,  §  57. 
Disqualification  of  judge  and  transfer  of  admin- 
istration. 

when  judge  not  to  act,  §  1430. 

judge   being   disqualified,    proceedings    to     be 
transferred,  wliere,  §  1431. 

transfer  not  to  change  right  to  administer,  § 
1432. 

retransfer,  how  made,  §  1432. 

when  proceedings  to  be  returned  to  original 
court,   §  1433. 

power  of,  at  chambers,  §§  167,  1305. 

may  hold  court  in  other  county,  §  161. 
Production  and  proof  of  wills. 

custodian  of  will  to  deliver  same,  to  whom,  § 
129. 

penalty  for  neglect  to  do  so,  §  1298. 

who  may  petition  for  probate  of  will,  §  1299. 

contents  of  petition,  §  1300. 

when  executor  forfeits  rights  to  letters,  §  1301. 

will  to  accompany  petition,  §  1302. 

presentation  of  wills  to  be  prayed  for  and  en- 
forced, §  1302. 

notice  of  petition,  how  given,  §  1303. 

heirs  and  named  executors,  to  be  notified,   § 
1304. 

petition    mav   be   presented     in     chambers,    § 
1305. 

hearing  and  proof  of  will,  when,  §  1306. 

who  may  appear  and  contest,  §  1307. 

probate,  when  no  contest,  §  1.308. 

olographic  wills,  probate  of.  §  1309. 

wills,  proved  in  other  States,  to  be   recorded, 
§  1322. 

proceedings   on   production     of  foreign     will, 
§  1323. 

hearing  proofs   of  probate     of     foreign   will, 
§  1324. 

proof  of  lost  or  destroyed  will,  §  1338. 

must  have  been  in  existence  at  time  of  death, 
§  1339. 


1016  INDEX. 

PROBATE    PROCEEDINGS— Continued. 
Production  and  proof  of  wills— 
to  be  certified,  recorded,  and  letters  granted, 

§  1340. 
court   to   restrain    Injurious    acts    of,    pending 

proceedings.  §  1341. 
probate  of  nuncupative  wills,  how,  §  1344. 
additional  requirements,    §  134.''). 
probate  of  will  to  bear  seal  of  court,  §  153. 
evidence  required  to  prove  Avill,    §  VMM). 
evidence     required     to     prove     will  revoked, 

§  1970. 
Contesting  probate, 
contestant  to  file,  grounds  of  contest,  §  1312. 
how  jury  obtained,  and  trial  had,  §  1313. 
verdict— judgment — appeal,   §  1314. 
witness,  wlio,  and  how  may,  §  1315. 
proof  of  handwriting,   §  1315. 
testimony  reduced  to  writing,  §  1316. 
if  proved,  certificate  to  be  attached,  §  1317. 
will  and  proof  to  be  filed  and  recorded,  §  1318. 
contests  of  nuncupative  wills,   §  1346. 
Contesting-  will  after  probate, 
to  be  within  a  year,  §  1327. 
citation  to  be  issued,   §  1328. 
hearing  on  proof  of  service,   §  1329. 
petitions  tried  by  jury  or  court,  §  1330. 
judgment,  what,  §  1330. 
on   revocation,    powers      of     executors    cease, 

§1331. 
costs  and  expenses,  by  whom  paid,  §  1332. 
probate,  when  conclusive,  §  1333. 
time  given  to  infants  and  others,  §  1333. 
PROCEEDINGS,    conduct    of,    power    of   judicial 

officers  over,  §  177. 
to  be  in  English  language,   §  185. 
powers  of  court  over  conduct  of.  §  128. 
courts  of  record  may  make  rules  to  regulate, 

§  129. 
when  rules  take  effect,  §  130. 
on  non-attendance  of  judge  at  court,  §  139. 
not  affected  by  vacancy  in  office,  §  184. 
to  be  in  Enirlish  language.  §  185. 
ablnwiations  used   in,    §  186. 
numbers  may  be  expressed  by  figures,  §  186. 
in  case  juror  becomes  sick,  §  615. 


INDEX.  1017 

rKOCEEDlNGS— CoDtiniied. 

what  treatment  or,  is  a  contempt,  §  1209. 
See  Special  Proceedings. 
I'KOCESS,  defined.  §  17. 
of  superior  courts,  §  78. 
to  be  in  English  language,   §  185. 
abbreviations  used  in.  §  186. 
means  to  carry  ottt  .iurisdiction,  §  187. 
relief  from  inadvertence  or  mistake,  §  473. 
in  justices'   cotirts.   mnv  issue  to  auA'  part  of 

county.  §§  94.  106. 
may  issue  from  court  at  chambers.  §§  165,  166. 
blanks  in  must  be  filled  by  justice  of  peace. 

§  920. 
service.     See  Service. 

what  treatment  of  is  a  contempt.  §  1209. 
act  relating  to  execution  of  final  process  on 

creation  of  new  county,  p.  864. 
act  validating?  process  issued  by  courts  before 

provided  with  seals,  p.  864. 
rROFESSIOXAI.    IMPLEMENTS,    exempt   from 

execution,  §  690. 
rROHIBTTION.   writ  of.   defined,   §1102. 
supreme  court  may  issue.  §  51.      1 
superior  courts  may  issue.  §  76. 
writ  of.  the  counterpart  of  mandate.   §  1102. 
where  and  when  issued.   §  1103. 
form  of,  ntay  be  alternative  or  peremptory,  § 

1104. 
provisions  respecting  issuance  of,   §  1105. 
when  returnnble  nnd  hoard,   §  1108. 
rules  of  practice.  §  1109. 
appeals  and  new  trials.  §  1110. 
PPvOOF.  defined,  §  1824. 

of  service  of  summons.  Iioaa-  made,  §  415. 
PROPERTY,  term  dofined.  §17. 
PUBLIC    Ar):MIXISTPATOT^S.  rnnk    of    in  order 

of  persons  entitle'l  to  administer,   §  1365. 
estates  which  may  be  administered  by,  §  1726. 
to    obtain    letters,    Avhen    and    how— bond    and 

oath  of,  §  1727. 
duty  of  person  in  whose  house  stranger  dies. 

§1728. 
must  return  inventorv  and  administer  estates. 

§  1729. 


1018  INDEX. 

PUBLIC  ADMINISTRATORS— Continued. 

when  to  deliver  up  estate,  §  1730. 

civil  officers  to  give  notice  of  waste,   §  1731. 

suits  for  property  of  decedents,   §  1732. 

order  to  examine  party  charged  with  embez- 
zling estate,  §  1733. 

punishment  for  disobedience  of  order,  §  1734. 

order  on,  to  account,   §  1735. 

every  six  months  to  return  condition  of  estate, 
§  1736. 

duty  as  to  estate,     moneys,     escheats,     etc., 
§  1737. 

not  to  be  interested  in  payment  on  account  of  ^ 
estate,  §  1738. 

when  to  settle  with  county  cleric,  §  1739.  • 

how  unclaimed  estates  disposed  of,  §  1739.  * 

proceedings   against,   for  failure  to  pay   over   \ 
moneys,  §  1740. 

failing  to   account  is   guiltv  of  misdemeanor, 
§  1740. 

fees   of   officers,    when   and   by     whom    paid, 
§  1741. 

to  administer  onths.   §  1742. 

probate,  proceedings  applicable  to,  §  1743. 
See  Estates  of  Deceased  Persons:  Executors  and 

Admim'strntors:   Special  Administrators, 
PUBLICATION.      See   Estates   of   Deceased   Per- 
sons: Solo  Trailers:  Summons:  Notice;  WiUs. 
PUBLIC  BUILDINGS,  what  exempt  from  execu- 
tion, §  G90. 

right  of  eminent  domnin,   exercised  in  behalf 
of.  §  ]  2.3S. 
PUBLIC    CALAMITY,    ground    for    removal    of 

court.   §  142. 
PUBLIC   OFFENSES,     cognizable     in     justices' 

courts.  §  11.5. 
PUBLIC   OFFICER,  place  of  trial,     in     actions 
against,  §393. 

may  be  arrested,  for  embezzlement,  §  479. 

when  excused  from  giving  testimony,  §  1881.      J 


when   must  testify.    §  1882 
penalty  for  disobedience  of  writ,  §  1097. 
must  give  copy  of  public  writing  on  demand, 
§  1893. 

See  Office. 


< 


INDEX.  1019 

PUBLIC  RECORDS.     See  Public  Writings;  Rec- 
ords; Writings, 
judicial  record  defined,  §  1904. 
liow  authenticated,  §  1905. 
record  of  foreign  country,  how  authenticated, 

§  1900. 
oral  evidence  of  a  foreign  record,  §  1907. 
effect  of    .iudgment  upon  rights,  §  1908. 
effect  of  other  judicial  orders,  §  1909. 
where  parties  to,  are  deemed  to  be  the  same, 

§  1910. 
what  deemed  adjudged  in  a  judgment,  §  1911. 
sureties  bound  bv,  §  1912, 
of  foreificn  state,  effect  of,  §  1913. 
of  couii-  of  admiralty,  §  1914. 
effect  of  foreign  judgment,  §  1915. 
manner  of  impeaching,   §  1916. 
the  jurisdiction   necessary   on   a   judgment,    § 

1917. 
of  private  writings  as  evidence,  §  1919. 
entries  in  official  boolvs,  primary  evidence,  §§ 

1920,  1926. 
justices'     judgment     in     other     states,     how 

proved,  §§  1921,  1922. 
copy  of,  to  bear  seal  of  court,  §  153. 
provisions  as  to  States  to  apply  to  territories, 

§  1924. 

See   Evidence;   Public  Writings. 
PUBLIC  USES.     See  Condemnation  of  Land. 
PUBLIC  WRITING,  defined,  §  188S. 
rights  of  citizens  to  inspect,  §  1892. 
public  officers,  bound  to  give  copies,  §  1893. 
four  kinds  of  public  writings,  §  1894. 
laws  written,  or  unwritten,  §  1895. 
written  laws,  defined,  §  1896. 
constitution  and   statutes,   §  1897. 
public  and  private  statutes,  defined,  §  1898. 
unwritten  laws,   defined,   §  1899. 
books     containing     same,     presumed     correct, 

■'^  1900. 
public  seal,  authenticates  law  or  document,  § 

1901. 
other  evidence  of  laws  of  other  States,  §  1902. 
recitals  in  statute,  how  far  evidence,  §  1903. 
judicial  record,   defined,   §  1904. 


1020  5NDEX. 

PUBLIC  WRITING— Continued. 

record,  how  authenticated,  as  evidence,  §  1005. 
record  of  foreiiin  country,  how  autlienticated, 

§  190(1 
oral  evidence  of  foreign  record,  §  1907. 
effect  of  .iuflsnient     upon     riglits   in   various 

cases,  §  1908. 
effect  of   other  judicial  orders,   when   conclu- 
sive, §  1909. 
where  parties  are  deemed     to     be  the  same, 

§  1910. 
what  deemed  adjudged  in  a  judgment.  §  1911. 
where     sureties     bound,    principal     is     also, 

§  1912. 
manner  of  proving  official  documents,   §  1918. 
official  certiticate,  contents  of,   §  1923. 
provisions  as  to  States  to  apply  to  Territories, 

§  1924. 
certificate    of    purchase,    primary    evidence  of 

ownership,   §  1925. 
entries   made   by   officers   or   boards,    primary 

evidence,   §  1920. 

See  Public  Records;  "Writings. 
QUALIFICATIONS,  of  justices  of  supreme  court, 

§  15G. 
of  judges  of  superior  courts,  §  157. 
of  sureties,  §  1056. 
QUESTIONS,  of  law  are  addressed  to  the  court, 

§  2102. 
of  fact,  are  addressed  to  the  jury,  §  2101. 
provisions  applicable,  referee  or  other  officer, 

§  2103. 
QUIETING     TITLE,     alienation     pending     suit, 

§747. 
costs  on  disclaimer,   §  739. 
defendants,  joinder  of.  §  379. 
disclaimer,  §  739. 

executor,  suit  mav  be  brought  against,  §  1582. 
generally,  land,  §§  738-740. 
generally,  money,  etc.,  §  1050. 
improvements,  setoff  for,  §  741. 
injunction,  §  520. 
inspection,    survey,    etc..  of    property,   §§   742, 

743. 
money,  etc.,  to,  §  1050. 


INDEX.  1021 

QUIETING  TITLE— Continued. 

parties  to  action,  §§  372,  379-381,  738. 
summons  may  be  served  by  publication,  when, 

§749. 
survey,  order  for,  §§  742,  743. 
title,      plaintiff's     terminating,      during     suit, 

§  740. 
QUO  WARRANTO,  appeals  to  supreme  court  in 

case  of,  §  1064. 
superior  court  have  .iurisdiction  of,   §  76. 
usurpation  of  office,  §§  803-810. 
REAL  PROPERTY,  means  lands,  tenements,  and 

hereditaments.   §  17. 
limitation,  of  actions  for,  §§  315-328. 
place  of  trial,  in  actions  for,  §  392. 
entry  upon  and  possession  of,   §§  320-324, 
intervention  in  actions  for,  how  effected,  §  387. 
recovery  of,  claims  for,  may  be  united,  §  427. 
description  of,  in  pleadings,  §  455. 
how  attached.  §  542. 

execution  against,  what  to  recite,  §  682. 
return  of  execution  against,  how  made.  §  683. 
judgments  against,  how  enforced.  §  684. 
execution  on,  how  and  to  whom  issued,  §  687. 
how  seized  on  execution,  §  688. 
foreclosure.  §  726. 
partition,   §§  752-801. 
sale  of,  in  partition,   §  763. 
sale  of,  in  foreclosure,  when  to  cease,  §  728. 
service   may   be   had   by   publication   in   suits 

concerning,  §  749. 

See  Redemption. 
IlECALLING  WITNESS,  permissible  under  what 

circumstances,   §  2050. 
RECEIVER,  appointment,  §§  304,  564. 
attorney  for  party  cannot  be,  §  566. 
corporation   acting  as,     powers     and     duties, 

§  1348. 
disqualified,  who  is.  §  566. 
escheated  estates,  in,  §  1270. 
foreclosure,  in  suit  for,  §  564, 
interested  person  cannot  be,  §  566. 
oath  of,  §  567. 
party  cannot  be,  §  566. 
powers  of,  §  568. 

Code  Civ.   Proc— 86. 


1022  INDEX. 

IIECET  VER— Continued. 

undertaking  for  damages,  §  566. 

undertaking  of,  §  567. 
RECORD.     See  Public  Records. 

copy,    requires   seal   of   court   to   authenticate 
it.  §  158. 

evidence,  as.     See  Evidence. 

removed,  may  be  only  by  order,  §  1950. 

transfer  of,  from  old  courts  to  new,  §§  55,  79. 
RECOVER  1    OF   PROPERTY,    claims   for,    may 

be  united,  §  427. 
REDEEM.     Se3  Foreclosure. 

limitations  as  to  suit  to,  §§  346,  347. 
REDEMPTIO.N,  who  are  redefnptioners,    §   701. 

when  property  may  be  redeemed  from  execu- 
tion sale,  §  702. 

when  judgment  debtor  or  other  redemptioner 
may  redeem,  §  703. 

notice  of  redemption,  §  703. 

to  whom  payments  to  be  made,  §  704. 

kind  of  money  to  be  paid,  §  704. 

what  redemptioner  must  do,   §  705. 

court  may  restrain  waste  pending  time  for  re- 
demption, §  706. 

rents  and  profits,  §  707. 

limitation  of  action  to  redeem,  §  346. 

of  action  to  redeem  part  of  mortgaged  prem- 
ises, §347. 
REFERENCE      AND      REFEREES,    on   trial   of 
charge  against  attorney,  §  298. 

may  be  ordered  for  taking  account,  §  636. 

when  may  be  ordered  on  agreement  of  parties, 
§  638. 

ordered  on  motion,  in  what  cases,  §  639. 

number  of  referees — qualifications,  etc.,   §  640. 

either  party  may  obiect,   §  641. 

grounds  of  objections,  §  641. 

objections,  how  disposed  of,   §  642. 

referees  to  report  within  ten  days,  §  643, 

finding  of  referees,  effect  of,  §  644. 

exceptions  to  findings  of,  §  259. 

exception  to,  and  review  of  findings,  §  645. 

referees  may  be  appointed  in  partition,  §§  761, 
763. 

trial  before,  in  partition,  §  762. 


INDEX.  1023 

REFETIENCE  AND  REFEREES— Continued. 

referees  to  divide  property,  rules     to  govern, 
§764. 

must  report  their  proceedings,  §  765. 

report  may  be  set  aside  or  affirmed.  §  766. 

expenses  of  referees  in  partition,  §  768. 

may  talve  security  for  purcliase  money  in  i)ar- 
tition.   §  777. 

cannot  be  purchasers  in  action,  §  783. 

must  report  sale  of  property.  §  784. 

all  must  meet,  but  two  mav  act,  §  1053. 
REGISTER  OP  ACTIONS,  clerk  to  keep,  §  1052. 
REHEARING,  in  supreme  court,  §43. 
RELATIONS.     See  Affinity:  Consanguinity. 
RELIEF,  what  granted  in  judgment,  §  580. 
REMEDIES,  judicial,  defined.  §  20. 

how  divided,  §  21. 

not  merged,  §  32. 

See  Actions;  Civil  Actions. 
REMITTITUR,   of  judsjment  of  supreme     court, 
§56. 

duty  of  clerk,   §958. 
REMOVAL,  of  action.     See  Place  of  Trial. 
RENEWING  APPLICATION,  for  refused  order, 

§182. 
RENTS  AND  PROFITS,  pending    redemption,   § 
707. 

setoff,   improvements   in   ejectment,    §  741. 
REPLEVIN.    See  Claim  and  Delivery. 

generally,  §§  473,  509-520,  667. 
REPOKTEKS    (pliouographic).    See    Phonograph- 
ic Reporters. 

generally,    §§   2G8-274. 

appointment  of.    §  269. 

qualifications  of,  §  270. 

attention  to  duties,  §  271. 

oath  of,  §  272. 

reports  prima  facie  correct,   §  273. 

fees  of,  §  274. 
RES   GESTAE,   generally,    §1850. 
RESIDENCES,  of  superior  judges,  §  158. 

of  justices  of  the  peace,  §  159. 
RESTITUTION    OF    PROPERTY      on      reversal. 
§957. 


1024  INDEX. 

RETURN,  of  execution,  when  to  be  made,  §  683. 

of  gold  dust,  how  made,  §  688. 

of  summons,   §  415. 

See  Execution:  Summons. 
REVOCATION,  of  probate  of  will,  §§  1.327-1333. 

See  Wills. 
REA^IEW.  WRIT  OF.    See  Appeals. 

appeal,  §  1110. 

application  for,  §  1069. 

chambers,  powers  at,   §§  1()5.  166. 

costs.  §  1082. 

defined.  §  1067. 

form  of,  §§  1070,  1071. 

hearing.  §  1075. 

issue  of.  §  1068. 

judgment,  §  1065. 

judgment  roll,  §  1077. 

"n'urisdiction,   superior  court,    §  76. 

.iurisdiction,  supreme  court,  §  51. 

new  trial,  §  1110. 

practice,  rules  of,  §  1109. 

return,   defective,  perfecting,   §  1075. 

return,  generally,  §  1064. 

review,  extent  of,  §  1074. 

service  of,  §  1073. 

stay  of  proceedings.  §  1072. 

when  mav  issue  and  be  heard,  §  1108. 
RIGHTS  AND     REMEDIES,   when  not  merged, 
§32. 

code  not  to  affect,  §  8. 
RIOT,  limitation,  action  for  damages  caused  by, 

§  340. 
RULES,  of  court  of  record.  §  129. 

when  to  talce  effect,  §  1.30. 

of  iustices'  courts  in  cities  and  counties,  §  95. 
SACRAMENTO  COUNTY,  act  providing  for  ad- 
ditional iudge  in,  p.  807. 
SALARY.     See  Liens. 
SALES.     See  Execution:  Foreclosure;  Partition. 

sales  of  property  of  decedents.  See  Estates  of 
Deceased  Persons;  Executors  and  Adminis- 
trators. 

of  real  property,  in  foreclosure,  when  to  cease, 
§  728. 

may  be  ordered  in  partition,  §  763. 


INDEX.  1025 

SALES— Continued. 

proceeds  of,  how  applied,  §  771. 
sales  of  by  referees,  must  be  at  auction,  §  775. 
terms  of,  must  be  directed  by  court,  §  776. 
terms  of,  to  be  made  Ivuown  at  time,   §  782. 
who  may  not  purchase  at,  §  78.3. 
conveyance,  when  to  be  executed,  §  785. 
conveyance,  etfect  of  recordin.c;,  §  787. 
See  Execution. 
SAN  BEKXARDINO  COUNTY,  act  providing  for 

additional  .iudge.  in,  p.  807. 
SAN  DIPXtU  county,  acts  increasing  and  low- 
ering number  of  .judges  in,  pp.  808,  809. 
SAN  FRANCISCO,   act     concerning     service     of 

summons  in.  p.  8.j8. 
SAN  LUIS  OBISPO,   acts  increasing  and  lower- 
ing number  of  judsres  in,  p.  809  et  seq. 
SANTA  CLAR.^  COUNTY,  act  mcreasing     num- 
ber of  .judges  in,  p.  811. 
SATISFACTION    OF    JUDG^rENT,     by     whom 
may  be  acknowledged,  §  179. 
how  entered,  §§  28.S,  675. 
SATISFACTORY   EVIDENCE,    defined,    §  1835. 
SCIRE   FACIAS,   abolished,   §802. 
SEAL,  defined,  §§14,  19.30. 
what  courts  to  have,  §  147. 
of  supreme  court.  §  148. 
of  superior  courts,  §  149. 

of  police  courts  of  cities  and  counties,  §  150. 
how  provided,  §  151. 
of  court  commissioner.   §  259. 
to  be  kept  by  clerk,  §  152. 
to  what  proceedings  to  be  aflixed,  §  15.3. 
to  be  afiixed  to  execution,  §  682. 
certain  writs  and  process  valid  without,  §  1.58. 
how  telegraphed.  §  1017. 
private  seal,  how  may  be  made,  §  1931. 
public,  how  made.  §  1931. 
of  what   seals  courts   take  judicial    notice,    § 

1875. 
public  seal  authenticates     law  or  document.  § 

1901. 
record,  how  authenticated,  §  1905. 
authentication  of  justices'  record  or  docKet.  § 
1922. 


1026  INDEX. 

SEAL — Continued. 

to  be  aflfixed  to  official  certificate,  §  1923. 

private,  scroll  may  be  used  for,  §  1931. 

effect  of,  on  private  writings,  §  1932. 

seal  makes  no  difference  in  writings,  §§  1932, 
1934. 

act  validating  writs,  process    and    certificates 
issued  by  superior  courts    before    provided 
with  seals,  p.  864. 
SECONDARY  EVIDENCE,  defined,  §  1830. 
SECRETARIES   of  supreme    court,   appointment 
of,  §  265. 

terms  and  salaries  of,  §  266. 
SECULAR  ACTS,  not  to  be    done    on    holidays. 

§  13. 
SEDUCTION,  guardian,  action  by,  §  375. 

parent,  action  by,  §  375. 

private  sittings,  §  125. 

woman,  unToarried,  may  sue  for,  §  374. 
SERVICE.     See    Attachment;      Executions;     No- 
tices; Summons. 

appearance  equivalent  to,   §  416. 

association,  on,  §§  388,  411. 

attorney     entitled  to     be     served  for  party,  § 
1014. 

complaint,  copy,  §§  410,  527. 

corporation,  on,  §  411. 

mail,  by,  §§  1012,  1013. 

mandate,  writ  of.  §  1096. 

non-resident,  §  1015. 

prohibition,   writ  of.    §  1096. 

proof  of.  §  415. 

publication  by.  §§  412.  413,  415. 

review,  writ  of,  §  1073. 

several  defen<1ants,   some  served.   §414. 

summons,  of,  §§  410-415. 

summons,  of,  gives  .iurisdiction,  §  416. 

telegraph,  by,  §  1017. 

of  complaint  and  affidavit  in  injunction,  §  527. 

publication,  when  allowed,   §  412. 

notice  and  paners,  how  served,  §  1011. 

time  for  appearance,  when  regulated  by  dis- 
tance, §  1013. 

upon  whom  made,  after  appearance,  §  1014. 


I 


INDEX.  1027 

SESSIONS,  of  supreme  court,  §  47. 

of  superior  courts,  §  73. 
SETOFF,  iietion  l)y  Jissij;nee  iii  insolvency,  setoff 
ill.  p.  8::53,  S  '27>,  subd.  1. 

mutual  debts  and  credits  where  debtor  insol- 
vent, p.  843,  §  47. 

debtor  cannot  offset     claims  purchased     after 
petition  filed,  p.  843,  §  47. 
SHAKES,  in  homestead  association  exempt  from 
execution,  §  GUO. 

hoTv  seized  on  execution,   §  688. 

in  corporation,  subject  to  attachment,  §  541. 

how  attached,  §  542. 
SHERIFF,  ex  officio  officer     of  justices'     courts, 
§87. 

to  summon  jurors.  §  225. 

summonin.s:  to  complete  panel,  §  227. 

action  against  for  official  misconduct,  §  1055. 

to  provide  court-room,   §  144. 

proof  of  service  of  summons,   how  made  by, 
§  415. 

liability  of,  for  escape  of  party  arrested,  §  501. 

liability,  for  sellins^  on  execution  without  no- 
tice. §  693. 

liability,  extent  of,  on  a  resale  on  execution, 
§  697. 

to  Iveep  party  arrested  on  justices'  process  till 
dischnrsed.   §  865. 

to  notify  plaintiff  of  arrest,  §  864. 

to  detain  person    arrested  for    contempt,   till 
discharged,  §  1214. 

liability  of.  for  arrest  of  witness,  §§  2068,  2069. 

compensation  of  sheriff  acting  as  assignee  in 
insolvencv,  p.  820,  §  6. 
SHERIFF'S    SALE.    See    Execution. 
SHIPS,  etc.,  actions  against,   §§813-827. 

answer,  who  may,  §  821. 

appearance,  who  mav  enter.  §  821. 

attachment,  §§  817-824. 

complaint,  §  815. 

execution  and  sale,  §  824. 

execution  sale,  notice  of,  §  827. 

jurisdiction,  justices'  court.  §  114. 

liens  against,  §  813. 

owners,  actions  to  be  against,  if  known,  §  814. 

owners,  unknown,  §  814. 


1028  INDEX. 

SHIPS— Continued. 

summons,  service,  etc.,  §  816. 

wages,  claims  for,  enforcing,  §§  825,  826. 

wages,  claims  for,  preferred,  §  825. 
See  Boats. 
SHORT-HAND    REPORTERS.    See   Phonograph- 
ic Reporters. 

generally,   §§  269-274. 
SIGNATURE,  when  deemed  admitted  in  justices' 
courts,  §887. 

to  pleadings,  ^  446. 

on     written     instrument,    genuineness     when 
deemed  admitted,  §§  447,  448. 

when  not  deemed  admitted,  §  449. 

includes  mark,  §  17. 
SINGULAR  includes  plural,   §  17. 
SITTINGS,  public  and  private,  §§  124,  125. 
SLANDER.    See  Libel  and  Slander. 

pleading,  §§  460,  461. 

additional,  costs  allowed  in,  p.  861,  Stat. 

plaintiff  must  file  bond  to  cover  costs,  p.  861, 
Stat. 
SOLE  TRADERS,  who  may  become,  §  1811. 

notice,  how  given,  §  1812. 

petition,  what  to  contain,  §  1813. 

community  property  allowed,  §  1814. 

who  may  oppose  petition,  and  how,  §  1815. 

trial  and  hearing  on  application,  §  1816. 

decree,  what  to  be,  §  1817. 

oath,  form  of, .  §  1818. 

order,  copy  of,  to  be  recorded,  §  1818. 

rights  and  liabilities  of,  §  1819. 

must  maintain  children,  §  1820. 

husband  not  liable  for  debts  of,  §  1821. 
SPECIAL  ADMINISTRATORS,  when  appointed, 
§  1411. 

special    letters  may  be    issued    in    vacation,  § 
1412. 

preference,  to  whom  given,  §  141.3. 

to  take  oath  and  give  bonds,  §  1414. 

duties  of,  §  1415. 

when  powers  of.  to  cease,  §  1416. 

to  render  account,  §  1417. 

See  Executors  and  Administrators. 


INDEX.  1029 

SPECIAL  PROCEEDINGS  defined,   §  23. 
.iurisdiction  in  supreme  court,  §  52. 
jurisdiction  in  superior  courts,  §  76. 
new  trial,  and  appeal,   §  1110, 
costs  allowed  in.  §  1022. 
who  is  plaintiff  in,  §  IOCS, 
who  is  defendant  in,  §  1063. 
motion  in,  and  orders,  §  1064. 
judgment  in,  §  1064. 
practice  in,  §  1109. 

for  removal  or  suspension  of  attorney,  §  289. 
for  condemnation  of  land,   §  1243. 
for  condemnation,   new  proceedings,   §  1250. 
relative  to  escheated  estates,  §§  1269-1272. 
to  recover  escheated  estate,  §  1272. 
in  contest  of  elections,  formality  of,   §  1117. 
In  justices'  courts,  provisions  applicable,  §  925. 
on  change  of  venue  in  justices'  courts,  §  922. 
against     public    administrator    for    failure    to 

pay  over  monev,   §  1740. 
SPECIFIC  PERFORMANCE,  of  contracts  of  de-- 

cedent,  §  1597,  et  seq. 
STATE,  defined,  §  17. 

costs  in  action,  how  paid  by,  §  1038. 

not  required  to  give  bonds  in  action,  §  1058. 

act  authorizing  Robt.  C.  Ball  to  sue  state,  p. 

870. 
act    authorizing     Coulterville    and     Yosemite 

Turnpike  Company  to  sue  state,  p.  871. 
act  authorizing  suits  against  the  state,  p.  868. 
actions  against  state,  procedure  in,  p.  868,  Stat, 
actions  against,  time  to  bring,  p.  868.  Stat, 
judgments  in  action  against,  p.  868.   Stat, 
duty  on  governor  and  controller  where  judg- 
ment rendered  against  state,  p.  868,  Stat. 
STATE:MENT  of  cause  of    action,   how  made,   § 

427. 
on  motion  for  a  new  trial,  how  made,  §  661. 
effect  of.   §  661. 
of  points  in  judge's  charge  to  be  furnished,  § 

608. 
on  appeal  to  superior  court,  §  975. 
when  not  necessary,  §976. 
of  findings,  how  made,  §  661. 


i030  INDEX. 

STATE     OFFICER,  serving    in   official    capacity, 

need  not  give  bonds,  §  1058. 
STATUTE  OF  FRAUDS.    See  Evidence. 
STATUTE  OF  LIMITATION.    See  Limitation. 

how  pleaded,  §  458. 
STATUTE,  authentication  of,  of    other    state,   § 
1901. 

books    containing    admissible    in    evidence.   § 
1900. 

construction,  §§  1858,  1859,  1866. 

definition  of,  §  1898. 

existing  construction  of  provisions  similar  to, 
in  code,  §  5. 

foreign,  as  evidence,  §§  1900,  1901. 

inconsistent  with  code,  every,  repealed,  §  18. 

private,  how  pleaded,  §  459. 

public  and  private,  defined.  §  1898. 

recitals  in,  evidence  of  what,  §  1903. 

repealing,  etc..  §  18. 

two  interpretations,  capable  of,  §  1866. 

which  of  two  constructions  to  prevail.  §  1866. 
STATUTORY  PROHIBITION,  effect  of,  on  limi- 
tations of  actions.   §  356. 
STAY  OF  PROCEEDINGS  on  appeal  from  mon- 
ey .iudgnient.   §  942. 

on  appeal  in  claim  and  delivery,  §943. 

on  .nidgment  directing  conveyance,  §  944. 

in  real  actions.  §  945. 

on  appeal,  effect  of,  §  946. 

on  .iudgment.  for  perishable  property.  §  949. 

on  filing  undertaking  on  appeal,   §  979. 

pending  review.  §1071. 

See  Appeal. 
STENOGRAPHERS.     See  Short-hand    Reporters. 
STREET.     See  Highwavs. 
SUB^NHSSION  to  arbitration,  §§  1281-1290. 

controversv   without   nction.    §§    11.38-1140. 

how  submitted,   §  1138. 

.iudement  thereon,   §  11.39. 

.iudirment  may  be  enforced  or  appealed  from, 
§  1140. 
SUBPOENA  for  witnesses,  defined,   §  1985. 

may  be  issued  by  justice  of  the  peace,  §§  919, 
920. 

how  issued,  §  1986. 


INDEX.  1031 

SUBPOENA- Continued, 
bow  served,  §  1987. 

how  served  on  concealed  witness,  §  1988. 
•when  witness   compelled  to  attend,    §  1989. 
person  present  compelled  to  testify,  §  1990. 
punishment  for  disobedience,   §  1991. 
forfeiture  therefor,  §  1992. 
vrarrant  may  issue  for  witness,  when,  §  1993. 
warrant,  contents  of,  §  1994. 
if     witness  is     a  prisoner,  how  brought  by,  § 

1995. 
who  may  move  for  warrant,  §  1996. 
imprisoned  witness,  how  examined,  §  1997. 
to  witness  to  appear    before    commissioner,  § 

2036. 
fee  for  service  of  by  person  other  than  sheriff, 
p.  790,  Stat. 

See  Evidence. 
SUBSCRIBING  WITNESS  defined,   §1935. 
.to  be  called  to  prove  instrument,  §  1940. 
proceedings    on    his    denial  of    knowledge,   § 
1941. 

See  Evidence:  Wills. 
SUBSCRIPTION,  includes  mark,  §  17. 
SUBSTANTIAL  JUSTICE  to  govern  construction 

of  pleading,  §§  452,  475. 
SUBSTITUTION  OF  PARTIES,  on  death  or  dis- 
ability, §  385. 
of  party  defendant,  §  386. 
SUCCESSIVE  ACTIONS,  when  may  be  prosecut- 
ed, §1047. 
SUCCESSORS,  what    justices    successors  of  oth- 
ers, §98. 
what  .iustices  of  peace  are,  §  107. 
of  justice,  who  deemed,  §  917. 
in  case  of  dispute,  who  to  designate,  §  918. 
SUMMARY    PROCEEDINGS  to    discharge  from 
arrest.  §  1144. 
to  obtain  possession  of  real  propertv,  §  1161. 
SUMMONS  to  be  in  English  language,  *§  185. 
how  commenced,  §  405. 
within  w^hat  time  may  issue,  §  406. 
issuance  of,  how  made,  §  406. 
how  issued,  directed,  and  what  to  contain,  § 
407. 


1032  INDEX. 

SUMMONS— Continued. 

alias  summons,  when  may  issue,  §  408. 

how  served  and  returned,  §  410. 

how  served  against  particular  persons,  §  411. 

publication  of,  when  may  be  made,  §  412. 

service  by  publication  in  partition,  §  757. 

by  publication  in  action  on  liens,  §  1191. 

manner  of  publication  and  appointment  of  at- 
torney, §  418. 

publication,     service     by     where       defendant 
claims  interest  in  realty,  §  749. 

publication,   service  may  be  had  by  in  what 
actions,  §  749. 

fee  for  service  of  by  person  other  than  sheriff, 
p.  790,  Stat. 

appearance,  effect  of  where  summons  not  is- 
sued or  served,  §  41C». 

dismissal  for  failure  to  issue  and  serve,  §  581. 

service  of,  by  telegraph,  §  1017. 

proceedings,  where  a  part  only  of  several  de- 
fendants are  served,  S  414. 

proof  of  service    of    summons,   what    consti- 
tutes, §415. 

when  jurisdiction  acquired,  §  416. 

on  owners,  etc.,  of  vessels,  §  816. 

provisions   of   Code    as  to,   not    applicable   to 
contempts,  §  1016. 

when  to  issue  in  police  courts,  §  930. 

service  not  personal,  effect  of,  §  473. 
In  justices'  courts. 

to  whom  directed,  and  what  to  contain,  §  844. 

must  issue  within  one  year,  §  840. 

time  for  appearance  before  justice,  §  845. 

alias,  when  may  issue,  §§  846,  847. 

service  of,  in    justices'  court,  where    made,   § 
848. 

by  whom  served  in  justices'   courts,   S  849. 

hour  given  for  appearance,  ^  850. 

issuance  of,  how  waived,  §  841. 
In  particular  actions  and  proceedings. 

issuance  of,  to  juror,  in  general,   §§  225-238. 

to  whom  directed  in  partition,   §  756. 

service  on  partition,   §  757. 

in  actions  against  steamers  and  vessels,  §  816.- 

in  forci]>le  entry  and  detainer,  what  to  state, 
§  1166. 


INDEX.  1033 

SUMMONS— Coiitiuued. 

service   of,   in  forcible   entry   and   detainer.    § 

in   proceedings   relating   to   escheated   estates, 
§  1269.  .      ^ 

In  condemnation  of  land,  what    to    contain,  § 
1245. 

in  condemnation  of  land,  how  issued  and  serv- 
ed, §  1245. 

to  interpreter,  how  served,  §  1884. 
in  proceedings  against  joint  debtors. 

when  to  issue,  after  judgment.   §  989. 

what  to  contain  in  proceedings  against  joint 
debtor,  §990. 

bv  what  accompanied.   §  991. 
&!  UN  DAYS,  powers  of  courts  on.   §  134. 
SUPERIOR     COURT.    See    Courts;    Judges;    Ju- 
dicial Officers. 

judges  and  elections,  §  65. 

of  two  or  more  judges,  §  66. 

of  city  and  county  of  San  Francisco.  §  67. 

terms"  of  judges.  §  68. 

computation  of  years  of  office,  §  69. 

vacancies.    §  70. 

held  by  judges  of  other  counties.  §71. 

judges"  pro  tempore  of.  §  72. 

sessions  of.  §  7.S. 

adjournments.  §  74. 

jurisdiction  of  two  kinds.  §  75. 

original  jurisdiction.  §  76. 

appellate   jurisdiction.    §  77. 

process.  §  78. 

transfer  of  books,  papers,  and  actions.  §  79. 

powers  of  previous  courts  conferred  on.  §  79. 

to  have  seal.  §  147. 

held   at  request  of  governor.   §  160. 

jurors  for.  §  204. 

reporters  for.  §  269. 

appeals  from.  §  9.S9. 

appeals  to,  §  963. 

powers  on  appeal.   §  980. 

jurisdiction   in  forcible  entry   and   detainer.    § 
1163. 

to  appoint  guardians,    §  1747. 
Code  Civ.   Proc— 87. 


1034  INDEX. 

SUPERIOR  COURT— Continued. 

act  increasing  and  decreasing  number  of  su- 
perior    judges     in     various     counties.      See 
Courts. 
SUPERIOR  .TUDGE,  elections  of,  §65. 

term  of  office  of,  §  68. 

vacancies,  5  70. 

judge  pro  tempore,  §  72. 

poAvers  conferred  on,  §  79. 

qualifications  of,   §  157. 

residence  of,  §  158. 

acts  increasing  or  lessening  number  of  judges 
in  various  counties.    See  Courts. 
SUPERVISORS,  to  select  list  of  jurors  for  supe- 
rior courts,    §  204. 

how  to  select,  §  205. 
SUPPLEMENTAL  PLEADINGS,  filing  and  ser- 
vice of,  §464. 

must  be  filed  and  served,  §  465. 
SUPPLEMENTARY  PROCEEDINGS,  debtor  re- 
quired to  answer,  §  714. 

proceedings  to  compel  appearance,  §  715. 

debtor  may  be  arrested,   §  715. 

debtor  of  debtor  may  pay  creditor,  §  716. 

debtor  of  debtor  may  be  examined,  §  717. 

witnesses  required  to  testify,  §  718. 

property  of  person  owing  debtor,  bow  applied, 
§719. 

proceedings  on  claim  of  third  person,  §  720. 

disobedience  of  parties,  how  punished.  §  721. 

provisions  to  apply  to  justices'  courts,  §  905. 
SUPREME  CLERK,  duty  of,  on  judgment  or  or- 
der on  appeal.  §  958. 
SUPREME  COURT.    See  Courts;  Justices  of  the 
Supreme   Court. 

elections  and  term  of  office,  §  40. 

computation  of  years  of  office,  §  41. 

vacancies,  §  42. 

departments,  §  43. 

apportionment  of  business,  §  44. 

in  bank,  §  45. 

absence  or  disability  of  chief  justice,  §46. 

sessions  of,  §  47. 

adjournments,  §  48. 

decisions  in  writing,  §  49. 

jurisdiction  of  two  kinds,  §  50. 


INDEX.  1035 

SUPREME  COURT— Continued. 

original  .iurisdiction.  §  51. 

appellate  jurisdiction,  §  52. 

powers  in  appealed  cases,  §  53. 

concurrence  necessary  to  transact  business,  § 
54. 

transfer  of  books,  papers,  and  actions,  §  55. 

transfer  of  records  and  business  to  new  court, 
§79. 

remittitur  in  transferred  cases,  §  56. 

to  have  seal,  §  147. 

officers  appointed  by,  §  265. 

secretaries  and  bailiffs  of,  §  265. 

to  hold  office  at  pleasure  of,  §  266. 

justices,  elections  and  terms  of,  §  40. 

justices,  qualifications  of,  §  356. 

justices,  ineli.cribility  of.  §  161. 

justices,  powers  of",  at  chambers,  §  165. 

justices,   disqualifications,   §  170. 

justices,  not  to  practice  law,  §  171. 

justices,  nor  have  partner  practicin.s:,   §  172. 

justices,  powers  out  of  court,  §  176. 

act  transferrinc:  business  from  old  court  to,  p. 
865. 

commission  for.   acts  creatine,  p.  790. 
SURETIES.    See  Bonds:  Undertaking. 

estoppel,   bound  by,   §  1912. 

indemnity     on     notice     by    sheriff     of     action 
acrainst  him,  effect,   §  1055. 

liability  inter  se,  settling-  by  action,  §  1050. 

qualifications   of,    §  1057. 

subrogation  on  payment  of  judgment,  §§  709, 
1059. 

injunction   bond,   conclusiveness   of   judgment 
against  sureties  on,  §  532. 

corporation  acting  as  surety,  p.  788,  Stat. 

corporation  formed  to  act  as  surety,  examina- 
tion into  by  insurance  commissioner,  §  1056. 

corporations,    right   to   act   as   sole   surety   on 
bond.  §§1056,  1057. 

corporations  acting  as  surety,  deficiency  of  as- 
sets,  §  1056. 
SURPRISE  a  ground  for  motion  for  new  trial,  § 
657. 

relief  from,  by  amendment,  §  473. 


1036  INDEX. 

SURVEY,  who  may  survey  land  taken  for  pub- 
lie  use,  §  1242. 
STHIVIVAL  OP  ACTION,  §§  1582-15<S4. 
SUTTER     COUNTY,  act  providing    for     separate 

judge  for,  p.  811. 
TEAMSTER,   property    of,  exempt    from    execu- 
tion, §  690. 
TELEGRAPH,   service  of  papers   may   be   made 

by,  §1017. 
TENxVNT,  when  guilty  of    unlawful    detainer,   § 

1161. 
TENANTS  IN  COMMON.    See  Parties;  Partition. 
TENDER  before  suit,  bars  costs.  §  10.^,0. 

an  offer  equivalent  to  payment,  §  2074. 

whoever  pays,  entitled  to  receipt,   §  2075. 

objections  to  tender  must  be  specified,  §  2076. 

generally,  §§997,  2074-2076. 

receipt,  payor  entitled  to,  §  2075. 
TENURE,  of  office  preserved,  §  6. 

how  effected  by  repeal  of  an  act,  §  7. 
TERMS  OF  COURT,  failure  of.  not  to  affect  pro- 
ceedings, §  184. 

of  supreme  court,  §  47. 

sessions  of  superior  courts,  §  73. 

of  justices'  courts.  §  88. 

abolished,  §§48,  73,  74. 

adjournment,  absence  of  judge,  §§  139,  140. 
TERM  OF  OFFICE  of  supreme  justices,  §40. 

of  superior  judges.  §  68. 

of  justices  of  the  peace,  §  110. 
TESTIFY,  definition  of,   §17. 

includes    every  mode    of    oral    statement    on 
oath,  §  17. 
TESTIMONY.    See  Evidence. 

of  witness,  one  kind  of  evidence,   §  1827. 

when  to  be  taken  down  by  clerk,  §  1051. 

of  Mitness,  modes  of  taking,  §  2002. 

affidavit,  defined,   §2003. 

deposition,   defined,    §  2004. 

oral  examination,   defined,   §  2005. 

depositions,  forms  of,  §  2006. 

of  witness  in  state,  how  taken,  §  2021. 

of  witness  out  of  state,  how.   §  2024. 

of  witness  out  of  United  States,  §  2024. 

application  for  order  to  perpetuate,   §  2084. 


INDEX.  1037 

TESTIMONY— Continiied. 

in  actions  for  partition,  §  774. 

in  proceedings  to  contest  probate,  §  1308. 

in  probate  proceedings,  to  be  tal^en  down  in 
writing,   §  1316. 
Proceedings  to  perpetuate. 

evidence  may  be  perpetuated,   §  2083. 

manner  of  application  for  order,  §  2084. 

notice  of  time  and  place  to  be  given,  §  2085. 

manner  of  taking  deposition,  §  2080. 

deposition  to  be  tiled,  §  2087. 

when  the  evidence  may  be  produced,  §  2088. 

effect  of  the  deposition,  §  2089. 

may  be  taken  in  case  of  adjournment.  §  596. 
THING  IN  ACTION,  assignment  of,  §368. 
TIMBER,  cutting-,  treble  damages,   §  733. 
T3ME  of  performance  of  act  may  be  extended,  § 
1054. 

when  code  takes  effect.  §  2. 

when  takes  effect  in  eminent  domain,  §  1259. 

exception  as  to  service  of  notice  of  appeal,  § 
1054. 

enlargement  of.   to  answer  or  demur  in   dis- 
cretion of  court,  §  473. 

courts    will   take   judicial   notice   of   measure- 
ment of,  §  1875. 

to  amend,  when  begins  to  run,  §  476. 

how  computed,  §  12. 

extension  of  where  attorney  in  attendance  up- 
on legislature,  §  1054. 
TITLE  of  Code,  §  1. 

head  notes,  when  used  in  construing,   §  19. 
TOOLS,  what  exempt  from  execution,  §  690. 
TOWN,  summons,  how  served  on,  §  411. 
TOWN  SITE  in  partition  cases,  §  763. 
TRANSCRIPT  of  judgment,  effect  of  filing,  §  674. 

of  proceedings  in  probate,  evidence  of  execu- 
tor's authority,  §  1429. 

on  appeal.    See  Appeals. 
TRANSFER.    See  Place  of  Trial. 

of  interest  not  to  abate  action,  §  385. 

of  cause,  on  disqualification  of  judge,  §  398. 

of  cause,  papers  to  be  transmitted,  §  399. 

proceedings   after  judgment,   in   certain   cases 
transferred,  §  400. 

of  motions  and  orders  to  shoA\   cause,  §  1006. 


1038  INDEX. 

TRANSFER— Continued. 
Ot  administrations, 
when  judga  not  to  act,  §  1430. 
judge    being    disqualified,   proceedings    to  be 

transferred,  and  wliere,  §  1431. 
transfer,  not  to  change  right  to  administer,  § 

1432. 
retransfer,  how  made,  §  1432. 
when  proceedings  to  be  returned  to  original 

court,  §  1433. 
TREASURER,  distribution  of  estate  of  infant  or 

incompetent  without  guardian  to,   §  1703i/.. 
TREES  AND   TIMBER.    See  Trespass. 
1'RESPASS,   liability  for    cutting    and     carrying 

away  trees,  etc.,  §  738. 
measure  of  damages  for,  §  734. 
when  damages  may  be  trebled,  §  735. 
TRIAL,  dismissal  of  action  without,  §  581. 
citations.    See  Citations, 
issues  of  fact,  calendar  of  cases,  §  593. 
postponement  for   absent  testimony,    §  595. 
certain  issues  presented,  jury,   §  1171. 
costs,  on  continuance,  §  1029. 
what  acts  or  omissions  are  contempts,  §  1209. 
continuation  of  trials  in  superior  court,  p.  865. 

Stat, 
in  justices'  courts,  how  conducted,  §§  878-887. 
abortive,  §  616. 
calendar.  §  593. 
Provisions  relating  to  trials  in  general, 
conduct  of,  §  607. 
continuance  of,   §  595. 
continuance  of,  costs,  §  1029. 
order  of,   §  607. 
place  of,  §§  .392-400. 
exceptions   mav   be    taken,   time    when,    etc., 

§  646. 
what  deemed  excepted  to,  §  647. 
form  of  exceptions,  §  648. 
exceptions     signed     by  judge     and  filed  with 

clerlv,  §  649. 
exceptions,  how  settled  upon  notice,  §  650. 
exceptions  after  judgment,  §  651. 
when     exception     refused,  application  to    su- 
preme court  to  prove  the  same,  etc.,  §  652. 


INDEX.  1039 

TRIAL— Continued. 

proceedings,  when  judge  ceases  to  hold  office, 
§  653.      • 
Evidence  on. 

when  testimony  to  be  taken  down  by  clerk, 
§  1051. 

facts  to  be  proved  on,  §  1870. 

witness  on,  when  may  be  excluded  from  court- 
room, §  2043. 

interrogation  of  witness,  in  discretion  of  court, 
§  2044. 

order  of  proof  on,  §  2042. 

showins:  required  in  forcible  entry  and  detain- 
er, §  1172. 

testimony  taken  by  deposition,  when  used  on, 
§§  596.  2028,  2032,  2088. 
Il;  particular  actions  and  proceedings. 

proceedings  on  impeachment,    §  39. 

for  removal  or  suspension  of  attorney.  §  297. 

trial  of  rights  to  property  on  execution.  §  689. 

against  debtor  of  judgment  debtor.   §  718. 

on  claim  of  third    person  to    property  in  re- 
plevin. §  720. 

in  proceedings  against  joint  debtor,  §  994. 

on  arrest  for  contempt.  §  1217. 

for     voluntary  dissolution     of     corporation,    § 
1232. 

for  condemnation  of  land.   §  1247. 

on  escheated  estates,  §  1271. 

on  claim  to  estate  eschented.  §  1272. 

for  change  of  names,  5  1278. 

contesting  probate.    §   1313. 

to  revoke  probate,  §  1330. 

on  application,  as  sole  trader.   §  1816. 
By  the  Court. 

when  and  liow  trial  bv  jurv  mav  be  waived, 
§631. 

decision  to  be  in  writing     and     filed  within 
twenty  days.  §  632. 

facts  found  and  conclusions  of  law  to  be  sep- 
arately stated,  §  633. 

judgment  on  findings,  §  633. 

findings  may  be  waived,  how,  §  634. 

proceedini?s  after    determination  of    issue    of 
law,   §  636. 


1040  INDEX. 

TRIAL— Continued. 

when  reference  may  be  ordered,  §  636. 

issues  of  law  to  be  first  disposed  of,  §  592. 
By  Jury. 

jury,  liow  drawn,  §  600. 

challenges,  each     party  entitled  to  four     per- 
emptory, §  601. 

grounds  of  challenge  for  cause,   §  602. 

challenges,  how  tried,  §  603. 

jury  to  be  sworn,  form  of  oath,  §  604. 

order  of  proceedings  o*i,  §  607. 

charge  to  the  jury,  §  608. 

court     must      furnish      points     contained     on 
charge,  §  608. 

special  instructions,  §  609. 

view  by  jury  of  the  premises,  §  610. 

admonition,  when  jury  permitted  to  separate, 
§  611. 

jury  may  take  with  them     certain     papers,  § 
612. 

deliberation  of  jury,  how  conducted,  §  618. 

mav  come  into  court  for  further  instructions, 
§614. 

proceedings  in  case  a  juror    becomes  sick,   § 
615. 

when     prevented  from     giving  verdict,  cause 
may  be  again  tried.  §  616. 

while     jury  are     absent,  court     may  adjourn 
from  time  to  time.  §  617. 

final  adjournment  discharges  jury,   §  617. 

verdict,  how  declared,  form  of,  §  618. 

polling  the  jury,  §  618. 

proceedings  when  verdict  is  informal,  §  619. 

when  allowed  in  police  courts,  §  932. 

when  mav  be  ordered  on  mandate  and     pro- 
hibition, §  1090. 

jury,  definition  of,  §  193. 

drawing,  §§  214-220. 

jurv,   summoning,   §§  22.5-235. 

justices'   courts,   §§  878-887. 

number  twelve,  §  194. 

verdict,  §§  624-628. 

verdict,  form  of,   §  618. 

verdict,    informal,    correcting,    §  619. 

verdict,  sealed,  §  617. 

view  by  jury,  §  610. 


INDEX.  1041 

TKIAI.— Continiioil. 
By  Referees. 

reference,  when     agreed     upon,  agreement  of 
parties,  §688. 

in  wliat  eases  ordered  on  motion,  §  639. 

number  of  referees,  qualifications,  etc.,  §  640. 

either  party  mav  object,  grounds  of  objection, 
5  641. 

objections,  how  disposed  of,  §  642. 

referees  to  report  witliin  ten  days,  §  643. 

effect  of  report,  liow  excepted  to,  etc.,  §  643. 

effect  of  findings  of  referee,  §  644. 

how  excepted  to,  §  645. 

by  referees  in    probate    proceedings,  §§  1507, 
1508. 

in  partition,  §  762. 

tAYO  or  three  referees  may  do  any  act,  §  1053. 
See  Reference  and  Referees. 
TRUSTEE  of  express  trust  may  sue  without  join- 
ing beneficiary,  §  369. 

costs  in  actions  by  or  against,  §1031. 

claims  against,  may  be  united,  §  427. 

may  be   ordered  to   deposit   money  in  court,  § 
572. 

compensation  of  trustee  on  settlement  of  ac- 
count, §  1700. 

corporation  actinc:  as  trustee,  powers  and  du- 
ties. §1348. 

declination  of  trustee  who  lias  been  appoint- 
ed executor,  §  1702. 

declination  of  person  appointed  as  trustee  un- 
der will  to  serve,  §  1702. 

jurisdiction     in     relation     to    filling  vacancies 
caused  by  declination  of  trustee,  §  1703. 

vacancy    caused     by     declination    of    trustee, 
manner  of  filling,  §  1702. 

vacancv     caused     bv  declination     of     trustee, 
power  to  fill,  §  1702. 

vacancy,  bond  of    trustee    appointed  to  fill,  § 
1702. 

accounts  of  trustee  under  will,  jurisdiction  of 
court  to  settle,  §  1699. 

accounts,  petition  by  trustee  for  settlement  of, 
§  1699. 


1042  INDEX. 

TRUSTEE— Continued. 

account,  petition  to  settle,  notice  and  hearing 

of,  §  1699. 
account,  appeal  from  decree  settling,   §  1701. 
account,  appeal  from  decree    settling,  conclu- 
siveness of  decree  after  affirmance,  §  1701. 
TULAKE  COUNTY,  acts  increasing  and  reducing 

number  of  judges,  p.  81.3. 
UNANSWERABLE   EVIDENCE   defined,   §1978. 
UNCERTAINTY  a  ground  for  demurrer,  §  430. 
UNDERTAKINGS,     court      commissioners     may 
take,  §  259. 
of  plaintiff  on  claim  and  delivery,  §  512. 
exceptions  to  sureties,  and    proceedings  there- 
on, §  513. 
of  defendant  for  a  redelivery,  §  514. 
justification   of  defendant's   sureties,    §  515. 
qualification  of  sureties,  §  516. 
in  actions  on  usurpation  of  office,  §  810. 
action  on,  §  521. 

action  upon,  on  dismissal  of  action,  §  581. 
action  upon,  on  a  contempt,  §  1220. 
action  upon,  in  attachment,  §  552. 
action  upon,  on  release  of  attachment,  §  555. 
deposit  instead  of,  in  justices'   court,    §  926. 
on  appeal,  §  978. 

stay  of  proceedings  on  filing,  §  979. 
not  required  from  state  or  officer,  §  1058. 
Of  plaintiff, 
on  arrest  and  bail,  §§  482,  862. 
of  defendant  on  arrest,  §  492. 
on  arrest  for  contempt,  to  be  returned,  §  1216. 
of  plaintiff  upon  injunction,  §  529. 
on  attachment,  §§  539.  867. 
for  release  of  attachment,  §§  5.54,  868. 
of    judgment    debtor    on    supplementary    pro- 
ceedings, §  715. 
of  receiver,  §  567. 
for  attachment  of    steamer,  boat,  or  vessel,  § 

818. 
for  release  of    attachment    against    boats    or 

vessels,  §819. 
for  continuance  in  justices'  courts,  §  877. 
on  proceedings  for    condemnation  of    land,   § 
1254. 


INDEX.  1043 

UNDERTAKINGS— Continued. 

on  appeal,  when  to  be  filed,  §§  941,  949. 

on  appeal  to  county  court,  §  978. 

justification  of  sureties,  §  978. 

for  costs  of    action,  required    of    nonresident, 
§§  1086,  1037. 

justification  of  sureties  on,  §§  1057,  1809. 

not  required  from  state,  when  a  party,  §  1058. 
See  Bond. 
UNINTELLIGIBILITY  a  ground  for  demurrer,  § 

430. 
UNITED  STATES,  term  defined,  §17. 
UNMARRIED  FEMALE  may  sue  for  her  own  se- 
duction. §  374. 
USURPATION  OP    OFFICE    OR    FRANCHISE, 
writs  of  scire  facias  abolished.  §  802. 

action  may  be  brousrht.  against  whom,  §  803. 

name  of  person  entitled  to  office  may  be  set 
forth  in  complaint,  §  804. 

when  party  usurping  may  be  arrested,  §  804. 

judgment,  what    rights    it    may    determine,  § 
805. 

when  rendered  in  favor  of  applicant,  §  806. 

damages  may  be  recovered,  §  807. 

rights  of  several  persons  may  be  determined 
in  one  action,  §  808. 

if  defendant  is  guilty,  judgment  to  be  render- 
ed. §809. 

security  by  relntor.  §  810. 

quo  warranto  abolished,  §  802. 

several  claimants,  ricrhts  of,  may  be  determin- 
ed in  one  action,  §  898. 
VACANCY,  in  office  of  judge  does  not  affect  pro- 
ceedings. §  184. 

in  office  of  justice  of  peace,  §  111. 

in  office  of  superior  judge,  §  69. 

in  office  of  supreme  judge,  §  42. 
VACATION.    See  Chambers. 
VARIANCE,  generally,  §§  469-475. 

material,  how  provided  for.  §  469. 

immaterial,  how  provided  for,  §  470. 

whnt  not  deemed  a  variance.  §471, 

amendments  of  course,  and  effect  of    demur- 
rer, §  472. 

amendments  by  the  court,  §  473. 


1044  INDEX. 

VAKIANCE— Continued. 

when  party  may  be  sued  by  fictitious  name,  § 
474. 

no  error  or  defect  to  be  regarded,  unless  it  af- 
fects a  substantial  right,  §  475. 

time  to  amend,  when  begins  to  run,  §  476. 
VENIRE.    See  Jurors;  Jury. 
VENUE.    See  Place  of  Trial. 

generally,  §§  392-400. 
VERDICT  by  three-fourths  of  jury,    §  613. 

when  prevented,  cause  may  be  again  tried,  § 
616. 

sealed  verdict  may  be  directed  by  court  to  be 
brought  in,  §  617. 

how  declared,  form  of,  §  618. 

jury  may  be  polled,  §  618. 

when  informal,  proceedings  thereon,   §  619. 

general  and  special,  defined,  §  624. 

when  a  general  or  special,  may  be  rendered, 
§625. 

in  actions  for  recovery  of  money,  or  establish- 
ing a  counterclaim,  §  626. 

in  actions    for    recovery  of    specific    personal 
propertv.  §  627. 

entry  of,  §  628. 

in  actions  for    forcible    entry  and    detainer,  § 
1174. 

in  actions  to  quiet  title,  §  740. 

in  proceedings  against  joint  debtors.  §  994. 

in  proceedings  to  contest  probate,  §  1314. 

findings  of  referee,  a  special  verdict,  §  643. 

causes  for  vacation  of,  §  657. 

exceptions  to,  what  must  specify,   §  648. 

is  part  of  .ludgment  roll,  §  670. 

when  may  be  reviewed  on  appeal,  §  956. 

judgment  not  supported  by,  notice  of    motion 
to  set  aside  and  hearing  of,  §  663^^. 

setting  aside  judgment  not  supported  by  ver- 
dict, §663. 
VERIFICATION,  answer,  when  to    be  verified,  § 
446. 

pleadings,  how  verified,  §  446. 

may  be,  by  affidavit,  §  2009. 

genuineness  and  execution    of    instrument    in 
complaint,  when  admitted,  §  447. 


INDEX.  1045 

VERIFICATIOX— Continued. 

genuineness  and  execution  of  written  instru- 
ment in  answer  admitted,  unless  denied  un- 
der oath,  §  448. 
when  genuineness    and    execution    of    instru- 
ment are  not  admitted,  §  449. 
complaint  for  an  injunction  must  be  verified, 

§  527. 
accusation  against  attorney  must  be  verified, 

§291. 
complaint  against  steamboat    or  vessel    must 

be  verified,  §  815. 
application  for  voluntary  dissolution  must  be 
verified,  §  1229. 
A'ESSELS,  claims  against,  how  sued,  §  816. 
actions  against,  §§  813-827. 
definition  of,  §  17. 
\]EW  by  iury,  §610. 
WAGES.    See  Lien. 

what    exempt    from    execution,    and    when,  § 

690. 
of  mariner,  a  preferred    claim    under    attach- 
ment, §825. 
V/AIVER  of  summons,  §406. 

by  failure  to  demur  or  answer,  §  434. 
of  jury  trial.  §  631. 
WAK,  a  cause  for  removal  of  court,  §142. 

effect  of,  on  statute  of  limitations,  §  354. 
WARD.    See  Guardian  and  Ward. 
WARRANT  to  commit  witness  for  examination, 
§  1994. 

See  Contempt:  Arrest  and  Bail. 
WASTE,  damages,  §§427,  732,  746. 
execution,  after,  §  745. 
executors  mny  be  restrained,  §  1341. 
foreclosure,  in,  §  745. 
generally,  §§  732-734. 
guardians,  by,  §  732. 
joint  tenants,  by,   §  732. 
tenant,  by,  §  732. 
tenant  in  common,  by,  §  <32. 
WATERCOURSES,  injunction  to    restram  diver- 
sion, damages,  §  532. 
injunction   to    restrain    diversion    of,  proceed- 
ings on  petition  for,  §  532. 

Code  Civ.   Proc— 88. 


1046  INDEX. 

WILLS.    See  Probate  Froceedings. 

includes  codicil,  §  17.  • 

revocation  of,  §  1970. 

construction  of,  §  1859  n. 

delivered  to  probate  court,  to  be,  §  1298. 

evidence  of,  what  required,  §  1969. 

revocation  of,  §  1970. 

witness  to,  may    prove    sanity    of    testator,  § 
1870  n. 

lost,  two  witnesses  required,   §  1968. 

requirements  of,  as,  §  1969. 

written,    parol     evidence  cannot     be  given  to 
vary,  §"1856. 
Jurisdiction. 

in  superior  courts,  §  76. 

when  exercised  over  estate,  §  1294. 

where  the  estate  is  in  more  than  one  county, 
§  1295. 

custodian   of   will,   to   whom   to    deliver  it.    § 
1298. 

penalty  for  nondelivery  of  will,    §  1298. 
Petition,  notice,  and  proof  of. 

who  may  petition  for  probate  of,  §  1299. 

contents  of  petition.   §  1800. 

when  executor  forfeits  right  to  letters,  §  1301. 

order  for    production    of,  to  whom  directed,  § 
1302. 

penalty  for  disobedience  of  order,  §  1302. 

notice  of  petition    for    probate,  how    given,  § 
1303. 

who  to  be  notified,  and  how.  §  1304. 

petition  may  be  presented  at  chambers,  §  1305. 

hearing  proof  of  will,  after  proof  of  service  of 
notice,  §  1306. 

who  mny  appear  and  contest  will,  §  1307. 

testimony  required  to  prove  will,   §  1.308. 

probate  of  will,  when    there    is    no    contest,  § 
1308. 

olographic  wills,  §  1309. 
Contesting  probate  of  wills. 

contestant  to  file  grounds,  and  petitioner  to  re- 
ply, §  1312. 

jury,  how  obtained,  and  trial,  how  had,  §  1313. 

verdict  of  iury,  judgment,  §  1314. 

witnesses,  Avho  nnd  how  many  may  be  exam- 
ined, §  1315. 


INDEX.  1047 

WILLS— Contiuued. 

proof  of  haudwritiug,   wlieu  admitted,   §  1315. 
testimony  reduced  to  writing',  for  further  evi- 

deuce,  §  131G. 
if  proved,  certiticate  to  be  attached,  §  1317. 
will  and  proof  to  be  tiled  and  recorded,  §  1318. 
Probate  of  foreign  will, 
wills  proved  in  other  state,  when  and  where 

to  be  recorded,   §  l.">22. 
proceedings  on  the  production  of  foreign  will, 

§  1323. 
hearing  proof     of     probate  of     foreign  will,  § 

1324. 
Contesting  will  after  probate, 
probate  mav  be  contested  within    one    year,  § 

1327. 
citation  to  be     issued  to     parties     interested, 

§  1328. 
hearing  on  proof  of  service,  §  1329. 
petitions  for  revolce    of    probate,   how    tried, 

§  1330. 
what  judgment  to  be  rendered,  §  1330. 
on     revocation     of,    power    of     executor,  etc., 

ceases,  §  1331. 
costs  and  expenses,  by  whom  paid,  §  1332. 
probate,  when  conclusive,  §  1.3.33. 
one  year  after  removnl  of  disability,  given  to 

infants  and  others.  §  1.333. 
Probate  of  lost  or  destroyed  wills, 
proof  of  lost  or  destroved  will  to  be  taken,  § 

1338. 
must  have  been  in    existence    at  the  time    of 

death,  §  1339. 
to  be  recorded  and  letters  granted,  §  1340. 
court  to  restrain  injuries  during,  §  1341. 
Probate  of  nuncujiative  wills, 
when  and  how  admitted  to  probate,   §  1.344. 
additional  requirements  in  probate  of,   §  134.5. 
contest  and  appointment  to  conform  to  provi- 
sions as  to  otlier  wills,  §  iruf). 
production  and  proof  of  wills.    See  Wills. 
WITNESSES  defined.  §    1878. 

all  persons  capable  of  ])erception  and  commu- 
nication may  be,   §  1879. 
persons  who  cannot  testify,  §  1880. 


1048  INDEX. 

WITNESSES— Continued. 

persons  in  certain  relations  to  parties,  prohib- 
ited, §  1881. 
when  an  interpreter,  to  be  sworn,  §  1881. 
judge  or  juror  may  be  a  witness,  §  1883. 
"when  privilesred  persons  must  testify.   §  1882. 
may  be  compelled  to  attend,  §§  128,  1989,  20G4. 
testimony  of  witness    in  state,  when    taken,  § 

2021. 
testimony  of  witness  out  of  state.  §  2024. 
how  to    procure  witness    upon    commission,  § 

2086. 
how.  if  no  commission.  §  2037. 
attendance,  how  enforced     in  contestinc:  elec- 
tions, §  1120. 
protected  from    arrest  when    attending,   etc.. 

§  2067. 
court  to  discharge  from  arrest,  §  2070. 
manner  of  application  for  order,  §  2084. 
Drivileged,  §  1881. 
attorney,  §  1881. 
clergyman,   §  1881. 
husband,   §  1881. 
physician.  §  1881. 
•priest,  §  1881. 
public  ofhcer,  §  1881. 

surgeon.  §  1881.  ■ 

wife,  §  1881. 

incompetent,  child  under  ten,   §  1880. 
incompetent,  parties  against  estate  of  deceas- 
ed, §1880. 
incompetent,     unsound     mind,     persons     of,  § 

1880. 
incompetent,  who  is,  §  1880. 
subscribing,  who  is.  §  1935. 
present  in  court,  person  may  be  made,  §  1989. 
prisoner.   §§  1995-1997. 
eundo,  morando.  et  redeundo,  §  2067. 
eyery  one  (except,  etc.)  may  be,  §§  1879,  1880. 
child,  §1880. 

competent,  who  is,  §§  1879.  1880. 
experts,   §  1870. 

judge  or  juror  may  be,  §  1883. 
act  authorizing  appointment  of   Italian   inter- 
preter, p.  856. 


INDEX.  1049 

WITNESSES— Continued. 
Means  of  production  of. 
subpoena  for  Avitness,  defined,   §  1985. 
subpoena,  liow  issued,   §  1986. 
to  be    issued    in    contested    election    cases,   § 

1120. 
how  served,  §  1987. 
may  be  served  by  teleg:rapli,  §  1020. 
how  served  on  concealed  witness,  §  1988. 
attendance  under  subpoena,   i5  1991. 
residence  out  of    county,  or    thirty  miles    off, 

need  not  attend,  §  1989. 
subpoenaed,  must  attend,  §  2064. 
subpoenaed,  warrant  for,  §§  1993,  1994. 
disobedience,  §§  1209,  1210,  1991.  1292,  2065. 
when  witness  is  compelled  to  attend,  §  1989. 
person  present  compelled  to  testify,  §  1990. 
disobedience,   how  punished.    §  1991. 
forfeiture  for  disobedience,  §  1992. 
when  warrant  may  issue  to    bring  witness.  § 

1993. 
contents  of  warrant,  to  produce,  §  1994. 
if  a  prisoner,  how  brought,  §  1995. 
on  whose  motion,  §  1996. 
imprisoned  witness,  how  examined,   §  1997. 
subpoena  to    appear     before     commissioner.  § 

2036. 
concealed  witness,   §  1988. 
fee  for  seiwice  of    subpoena    by  person    other 

than  sheriff,  p.  790,  Stat. 
Eights  and  duties  of  witnesses, 
witness,  bound    to    attend    when    subpaniaed, 

§  2064. 
bound  to  answer  questions,  §  2065. 
right  of,  to  protection  of  court,  §  2066. 
protected  from  arrest  when  attendinu'.   §  2067. 
arrest  so  made,  void,  liability  for,  §  2068. 
affidavit    to  be    made    by  witness  arrested,   § 

2069. 
to  be  discharged  from  arrest,  §  2070. 
how  to  be  sworn,  §  1846. 
rights,  as  to  form  of  swearing,  §  2095. 
may  either  take  oath  or  affirmation,   §  2097. 
exclusion  of  witness,  from  court-room,  §  2043. 
Testimony  of— who  may  be  examined  in  supple 

mentary  proceedings,  §  718. 


1050  INDEX. 

WITNESSES— Coutinued.. 

may  be  examined  on  trial  of  challenge,  §  603. 

evidence  of,  wliat  required,  §  19(39. 

testimony  of,  in  state,  §  2021. 

testimony  of,  out  of  state,  §  2024. 

how  to  procure  upon  commission,  §  2024. 

how,    if   no   commission,    §  2037. 

discharged  from  arrest,  §  2070. 

perpetuation  of  testimony  of,  §  2084. 

how  many  required  to  prove  contested  will, 
§  1308. 

how  many  for  uncontested  will,  §  1315. 

to  what  can  testify,  §  1845. 

presumptions,  concerning,  §  1847. 

credibility,  facts  tending  t6  show,  may  be 
proved,  §  1870. 

deceased,  previous  testimony  may  be  given  in 
evidence,  §  1870. 

recalling,  §  2050. 

re-examination  of,  §  2050. 

examination  of.  See  Examination  of  AYitnesses. 

refreshing   memory,    §  2047. 

refusal  to  answer,  §  1991. 

subscribing  witness,  denying,  or  forgetting  ex- 
ecution, it  may  be  proved  by  other  evidence, 
§§1940,   1941. 

witness,   swear  or  affirm,   must,   §  1846. 

witness,  treason,  more  than  one  necessary, 
§  1968. 

witness,  jurisdiction  out  of,  previous  testimony 
may  be  given  in  evidence,  §  1870, 

witness,  knowledge,  must  testify  from  per- 
sonal, §  1845. 

witness,  good  character  of,  etc.,  §  2053. 

witness,  impeaching  credit  of,  §§  2049,  2051, 
2052. 

witness,  one  sufficient,  except,  etc.,  §  1844. 

witness,  perjury,  more  than  one,  §§  1844,  1968. 

witness,  character  of,   §  2053. 

presumed  to  spealv  truth,  §§  1847,  2051,  2052. 

witness,   interpreter,   §  1884. 

act  authorizing  appointment  of  Italian  inter- 
preter, p.  856. 


INDEX.  1051 

WORDS,  used  in  singular,  convertible  with  plu- 
ral, §17. 

in  masculine,  convertible  with  feminine,  §  17. 

to  be  construed  by  context,  §  16. 

giving  joint  authority,   how  construed,   §  15. 

plural  iucludes  siuiiuhir  and  singular  plural  in 
insolvent  law,  p.  853,  §  66. 

debtor  includes  partnerships  and  corporations 
in  insolvent  act,  p.  853,  §  66. 

incapable,   §  1767. 

incompetent,  §  1767. 

mentally  incompetent,  §  1767. 
WORK,  not  to  be  done  on  holidays,  §  13. 
WRIT.    See    Attachment;    Execution;    Summons, 
etc. 

definition   of,   §  17. 

issuance  generally,  §§  51,  76. 

issuing  at.  chambers,  §§165,  166. 

seal  required,  §  152. 

service,  by  telegraph,  §  1017. 

certain,    declared   valid   without   seal,    §  158. 

what  writ  abolished,  §  802. 

of  lieview,  mandate  and  prohibition,   §  1108. 

may  be  served  by  telegraph,  §  1017. 

act  validating  writs   issued  by   courts  before 
provided  with  seals,  p.  864. 
WRITINGS.    See   Private  Writings;   Public  Rec- 
ords; Public  Writings;  Written  lustrumeuls. 

are  one  kind  of  evidence,  §  1827. 

original  writings  are  original  evidence,  §  1829. 

art'  of  two  kinds,  public  and  private,  §  1887. 

public,  defined,  §  1888. 

private,  defined,  §  1889. 

execution  of,  setting  forth,  etc.,  §§446-449. 

includes  printing,  §  17. 

inspection  of,   §  1000. 

iui^pection  of,  may  be  demanded,  §  1000. 

inspection  refused,  effect  of  refusal,  §  449. 

inspection  of  writing  shown  to  witness,  §  2054. 

shown  to  witness,   may   be  inspected   by  ad- 
verse party,  §  2054. 

who  may  inspect  and  copy  public  writings,  § 
1892. 

duty  of  custodian  of,  §  1893. 

copy  of,  how  certified,  §  1923. 


1052  INDEX. 

WRITINGS— Continued. 

copies  of,   are  secondary  evidence,   §  1830. 
agreement,  when  deemed  tlie  whole,  §  1856. 
construetiou    of,    description,    conveyances    of 

real  property,   §  2077. 
construe,  court  must,  §  2102. 
construction  of  language  relates  to  place  where 

used,   §  1857. 
general  rule  of  construction,  §  1858. 
intention  of  parties  to  be  pursued,  §  1859. 
circumstances  to  be  considered,   §  1860. 
terms,  construed    by    general    acceptation,   §§ 

1861,  1865. 
written  words  control  those  printed  in  blank 

form,  §  1862. 
skilled  persons  may  testify  to  decipher  charac- 
ters,  §  1863. 
of  two  constructions,  which  preferred,   §  1864. 
of  two  interpretations,  which  preferred,  §  1866. 
^^,  RITTEN    INSTRUMENT,    in    complaint,   how 

controverted,   §  447. 
in  answer,   how  controverted,   §  448. 
alcalde's  books  and  grants,  §  1919.  . 

affidavit,  defined,  §  2003. 
aflidavit,  when  may  be  used,  §§  2009-2011. 
affidavit,  who  may  take,  §§  2012-2015. 
acknowledgment   proves,    §§  1948-1951. 
alteration  in,  §  1982. 
alteration  of  writing,  producer  must  explain, 

§  1982. 
art,   books  of,   §  1936. 
bibles,  family,  etc.,  §  1870. 
bill  of  exchange,  indorsement  where  presumed 

made,   §  196.3. 
board,  entrv  bv,  prima  facie,   §§  1920,  1926. 
books,  evidence,  §§  1900,  1902,  1936. 
books,  oflBcial,  entries  in,  §  1920. 
books,  presumption  as  to  contents  of,  §  1963. 
books,  public,  entries  in,  §  1920. 
books.    See  Books. 

called  for  and  inspected  need  not  be  put  in  evi- 
dence, §  1939. 
comparison,  §  1944. 
contents,  how  proved,   §  1855. 
contents   of,   when   admissible,    §  1870. 


INDEX.  1053 

WKITTP:X   instrument— Continued. 

contract  reduced  to  writing:,  no  other  evidence 

can  be  given  of  it,   §§  1856-1860. 
custody  of  adverse  party  in,  §  1938. 
decedent,  entries  by,  §  1946. 
decipliering,  experts,   §  1863. 
deeds,   construction  of,   §  1859  n. 
destroyed,  proving-  contents  of,  §  1855. 
entries  copied  from  one  booli  in  another,  when 

deemed  originals,   §  1947. 
executed,  how,   §  1933. 
execution,  admission  of,  §  1942. 
execution,  how  proved,  §§  1940-1945. 
foreign   language,    experts   may   testify   as   to 

meaning,  §  1863. 
general  acceptation,  terms  to  be  construed  by, 

§  1861. 
handwriting,  how  proved,  §§  1943,  1944. 
kinds  of,  public  and  private,   §  1887, 
lex  loci,  §  1857. 

lost  or  destroyed,  proving  contents  of,  §  1855. 
original  must  be  produced,  when,  §  1937. 
part  in  evidence  all  may  be  proved,  §  1854. 
printed  partly,  §  1862. 
private,  public  records  of,  §  1894. 
private,  public  records  of,  proved  how,  §  1919. 
private,  sealed  and  unsealed,  are,  §  1929. 
private,  whole  agreement  deemed,  §  1856. 
proved  by  witness,   must  be  read  before  his 

testimonv  closed,  §  2055. 
public,  §§  1888,  1892-1926. 
public,  books,   etc.,   §  1920. 
public,  certificate,  what  it  must  state,   §  1923. 
public,  certified  copies  of  must  be  supplied,  § 

1893. 
seal  makes  no  difference,  §  1932. 
shown  to  witness,  may  be  inspected  by  oppo- 
nent, §  2055. 
thirty  years  old,  §§  1945,  1963. 
two  interpretations,   capable  of,    §  1866. 
undecipherable,     experts    may    testify    as  to 

meaning,  §  1863. 
public,  classes  of  judicial  records,  §  1894. 
public,  classes  of,  laws,  §  1894. 
public,  classes  of,  official  documents,  §  1894. 


1054  INDEX. 

WIMTTEN  INSTRUMENT— Continued. 

public,  classes  of,  private  writings,   §  1894. 
public,  classes  of,  public  records  of,   §  1894. 
public,  inspection  of  by  citizens,  §  1892. 
public,  laws,  statutes,  etc.,  §§  1895-1903. 
public,   official  documents,  proof  of,    §  1918. 
public,  state  or  county  of  any,  certified  copy 

admissible,  §  1901. 
surrounding  circumstances  admissible,   §  1860. 
See  Writings. 
YOSEMITE      AND      COTJLTEllVILLE      TI^RN- 
PIKE    COMPANY,  act  authorizing    suit    by 
against  state,  p.  871. 
YUBA    COUNTY,    act    providing    separate    judge 
for,  p.  811. 


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